Introduction
Enforced disappearances represent one of the most egregious violations of human rights, characterized by the abduction or detention of individuals by state actors or with state complicity, followed by a refusal to acknowledge the deprivation of liberty or to disclose the fate or whereabouts of the disappeared person. This practice leaves victims unseen and unheard, inflicting profound suffering on both the victims and their families. Often used as a tool of repression, enforced disappearances have been documented across various political regimes and conflict zones, from Latin America during the military dictatorships of the 1970s and 1980s to ongoing crises in regions like the Middle East and South Asia. The global scale of this issue necessitates a robust international legal framework to prevent such atrocities, provide justice for victims, and ensure accountability for perpetrators.
Adopted by the United Nations General Assembly on 20 December 2006 and entering into force on 23 December 2010, the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) stands as a seminal instrument in addressing this crisis. The ICPPED establishes a non-derogable right not to be subjected to enforced disappearance, defines the act as a crime against humanity under certain conditions, and imposes obligations on state parties to prevent, investigate, and prosecute such acts. As of August 2024, 98 states have signed the convention, and 76 have ratified or acceded to it, reflecting a growing, yet insufficient, international commitment to combatting this issue.
This article examines the global crisis of enforced disappearances through the lens of the ICPPED, exploring its provisions, the legal mechanisms for treaty incorporation into national law, and the broader implications for international cooperation. Specifically, it will analyze how countries can legally enter into treaties such as the ICPPED, whether a given state adopts a monist or dualist approach to international law, and the relationship between the ICPPED and the Vienna Convention on the Law of Treaties (VCLT) of 1969. By doing so, it aims to provide insights into how states can effectively engage with the ICPPED to address enforced disappearances and promote global human rights standards.
The Global Crisis of Enforced Disappearances
Enforced disappearances are not merely isolated acts of violence but are often systematic strategies employed by states or state-supported entities to silence dissent, instill fear, and eliminate perceived threats. The practice deprives individuals of their fundamental rights to liberty, security, and due process while imposing severe psychological trauma on families who are left without answers. Historical examples include the “Dirty War” in Argentina, where an estimated 30,000 individuals disappeared between 1976 and 1983, and more contemporary cases such as the ongoing disappearances in Syria, where tens of thousands have vanished since the outbreak of the civil war in 2011.
The impact of enforced disappearances extends beyond the immediate victims. Families endure prolonged uncertainty, often referred to as “ambiguous loss,” which hinders their ability to mourn or rebuild their lives. Communities are terrorized, and the rule of law is undermined as impunity prevails. Moreover, enforced disappearances often occur in conjunction with other human rights violations, including torture, extrajudicial killings, and arbitrary detention, creating a vicious cycle of oppression.
Despite the severity of this crisis, international responses have historically been fragmented. Prior to the adoption of the ICPPED, mechanisms such as the Working Group on Enforced or Involuntary Disappearances, established by the United Nations Commission on Human Rights in 1980, provided critical oversight but lacked binding legal authority. Regional instruments, such as the Inter-American Convention on Forced Disappearance of Persons (1994), addressed the issue in specific contexts but failed to achieve universal applicability. The ICPPED, therefore, emerged as a landmark treaty, filling critical gaps in international law by providing a comprehensive framework for prevention, accountability, and redress.
Key Provisions of the ICPPED
The ICPPED is a groundbreaking instrument that codifies the prohibition of enforced disappearances and establishes clear obligations for state parties. Article 1 declares that “no one shall be subjected to enforced disappearance” and emphasizes that this right is non-derogable, even in times of war or public emergency. This provision sets a firm standard against which state conduct must be measured, ensuring that no justification can be invoked for such acts.
Article 2 defines enforced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” This definition is crucial for identifying and prosecuting acts of enforced disappearance, as it explicitly implicates state responsibility.
Under Article 3, state parties are required to take appropriate measures to investigate acts of enforced disappearance committed by non-state actors, while Article 4 obliges them to ensure that enforced disappearance constitutes an offense under domestic criminal law. Article 6 further stipulates that state parties must hold individuals who commit, order, or induce enforced disappearances criminally responsible, rejecting superior orders as a defense. Additionally, Articles 9 through 11 mandate the right to report and investigate disappearances, ensuring prompt and impartial inquiries, while Article 12 requires states to guarantee access to justice for victims and their families.
The ICPPED also establishes the Committee on Enforced Disappearances under Articles 26 and 27 to monitor implementation and receive complaints from individuals or states regarding violations. This mechanism enhances accountability by providing a platform for oversight and dialogue between the committee and state parties. Collectively, these provisions create a robust framework for preventing enforced disappearances and addressing their consequences, though their effectiveness depends on national implementation.
Legal Mechanisms for Entering into Treaties under the ICPPED
The process by which a state can legally enter into treaties such as the ICPPED is governed by both international law and domestic constitutional provisions. At the international level, the ICPPED itself outlines the modalities for becoming a party. Article 38 specifies that the convention is open for signature by all member states of the United Nations and that it enters into force for a state on the thirtieth day following the deposit of its instrument of ratification, acceptance, approval, or accession with the Secretary-General of the United Nations. This aligns with standard treaty practice, ensuring that states formally express their consent to be bound by the convention’s obligations.
Article 39 further clarifies that the convention entered into force globally on the thirtieth day after the deposit of the twentieth instrument of ratification or accession, which occurred on 23 December 2010. This provision establishes a clear legal pathway for states to join the treaty regime, emphasizing the importance of formal commitment through ratification or accession as a prerequisite for assuming the obligations outlined in the ICPPED.
For a specific country to enter into the ICPPED, its domestic constitutional framework determines the procedural requirements. While this article does not focus on a particular state, a general example can be drawn from common constitutional practices. Typically, a state’s constitution or legal system will designate the authority responsible for treaty-making—often the executive branch, with legislative approval required for ratification. Once ratified, the treaty’s status within domestic law depends on whether the state adheres to a monist or dualist approach to international law, as discussed in the following section.
Monist vs. Dualist Approaches to Treaty Incorporation
The relationship between international and domestic law is fundamentally shaped by whether a state adopts a monist or dualist approach. In a monist system, international law and domestic law are considered part of a single legal order. Upon ratification of a treaty like the ICPPED, its provisions automatically become part of national law and can be directly invoked in domestic courts, often taking precedence over conflicting national legislation. Many civil law countries, such as France and the Netherlands, follow this approach, where constitutional provisions explicitly provide for the incorporation of international treaties into the domestic legal framework without the need for additional legislation.
In contrast, dualist systems view international and domestic law as separate legal orders. In such states, a treaty does not automatically become part of national law upon ratification; instead, it requires specific implementing legislation to translate international obligations into enforceable domestic rules. Common law countries, such as the United Kingdom and Canada, often adhere to this approach, where parliamentary action is necessary to give effect to treaties within the national legal system. For instance, in the UK, treaties must be incorporated through an Act of Parliament before they can be applied domestically.
For the purposes of this discussion, let us assume a hypothetical state to illustrate these concepts, as the original request does not specify a particular country. If this state operates under a dualist system, ratification of the ICPPED would not suffice to enforce its provisions domestically. Instead, the government would need to enact specific legislation criminalizing enforced disappearance, establishing mechanisms for investigation and prosecution, and ensuring victims’ rights to justice and reparation, as mandated by Articles 3, 4, and 12 of the ICPPED. Failure to pass such legislation would render the state non-compliant with its international obligations, despite formal ratification.
Conversely, if the state follows a monist approach, the ICPPED’s provisions would theoretically become part of national law upon ratification, assuming the state’s constitution grants international treaties such status. However, even in monist systems, practical implementation often requires subsidiary regulations or amendments to existing laws to align domestic frameworks with treaty obligations. For instance, the state might need to update its criminal code to reflect the definition of enforced disappearance under Article 2 of the ICPPED or establish institutional mechanisms for monitoring and reporting as required by Article 26.
The distinction between monist and dualist approaches significantly affects how quickly and effectively the ICPPED can be enforced at the national level. Dualist states may face delays due to legislative processes, while monist states might encounter challenges in ensuring practical alignment with international standards. Regardless of the approach, the commitment to translate treaty obligations into actionable domestic law remains critical for addressing enforced disappearances.
The ICPPED and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is the cornerstone of international treaty law, codifying rules governing the formation, interpretation, and termination of treaties. It provides the legal framework within which treaties like the ICPPED are negotiated, concluded, and implemented. A key question is whether the ICPPED is a party to the VCLT or, more precisely, whether its state parties are bound by the VCLT’s provisions when engaging with the ICPPED.
The VCLT applies to treaties between states, and its provisions are widely recognized as reflecting customary international law, even for states that have not formally ratified it. The ICPPED, as a multilateral treaty, falls within the scope of the VCLT’s application. While the ICPPED itself is not a “party” to the VCLT (as treaties are not legal entities capable of being parties to other treaties), the states that ratify or accede to the ICPPED are generally subject to the VCLT’s rules if they are parties to it or recognize its principles as customary law. As of 2024, the VCLT has been ratified by 116 states, indicating broad acceptance of its framework.
The relevance of the VCLT to the ICPPED lies in several key areas. First, the VCLT’s Articles 11 through 17 establish the means by which states express consent to be bound by a treaty, including signature, ratification, and accession—processes mirrored in Article 38 of the ICPPED. Second, Article 31 of the VCLT outlines the general rule of treaty interpretation, emphasizing the ordinary meaning of terms in their context and in light of the treaty’s object and purpose. This principle is critical for understanding and applying the ICPPED’s provisions, particularly its definition of enforced disappearance under Article 2 and the non-derogable nature of the right under Article 1.
Third, the VCLT’s provisions on reservations (Articles 19 through 23) are pertinent, as they determine whether states can limit their obligations under the ICPPED. Article 42 of the ICPPED explicitly prohibits reservations that are incompatible with the object and purpose of the convention, aligning with the VCLT’s standards. This ensures that state parties cannot undermine the core protections against enforced disappearance through reservations, a safeguard informed by the VCLT framework.
For other countries considering engagement with the ICPPED, the VCLT provides a model for proper treaty-making. States must adhere to principles of good faith (VCLT Article 26, “pacta sunt servanda”), ensuring that they fulfill their obligations under the ICPPED once ratified. The VCLT also offers guidance on resolving disputes over interpretation or application (Articles 65-66), which can inform how states address potential conflicts arising from the ICPPED’s implementation. By aligning their treaty practices with the VCLT, states can ensure a transparent and legally sound process for joining and implementing the ICPPED, fostering international cooperation in combating enforced disappearances.
Challenges and Opportunities in Implementing the ICPPED
Despite its comprehensive framework, the implementation of the ICPPED faces significant challenges. One major obstacle is the lack of universal ratification. As of August 2024, only 76 states have ratified or acceded to the convention, leaving large swathes of the global population unprotected by its provisions. Major powers and regions with high incidences of enforced disappearances, such as certain countries in Asia and Africa, remain outside the treaty regime, often due to political unwillingness to accept international oversight or accountability.
Even among state parties, implementation varies widely. Some states lack the institutional capacity to conduct effective investigations or prosecutions, while others face resistance from security forces or entrenched cultures of impunity. For instance, while countries like Argentina and Chile have made strides in addressing historical disappearances through truth commissions and legal reforms inspired by the ICPPED, others struggle with ongoing violations due to weak rule of law or conflict dynamics.
Moreover, the dualist-monist dichotomy poses practical challenges. In dualist states, delays in passing implementing legislation can render the ICPPED ineffective for years after ratification. In monist states, automatic incorporation does not guarantee enforcement if judicial or administrative systems are unprepared to apply international norms. Capacity-building, training for law enforcement and judiciary, and public awareness campaigns are essential to bridge these gaps.
Nevertheless, the ICPPED offers significant opportunities for progress. The Committee on Enforced Disappearances provides a vital monitoring mechanism, issuing recommendations and engaging in dialogue with state parties to improve compliance. Civil society organizations and victims’ groups also play a crucial role, leveraging the ICPPED’s provisions to advocate for justice and policy change. For states newly considering ratification, the VCLT framework ensures a structured and legally sound approach to treaty engagement, enhancing the credibility of their commitments.
Conclusion
Enforced disappearances remain a profound global crisis, stripping individuals of their rights and dignity while leaving families and communities in anguish. The International Convention for the Protection of All Persons from Enforced Disappearance represents a critical step forward, establishing a non-derogable right against such acts and imposing clear obligations on state parties to prevent, investigate, and prosecute these crimes. Through provisions such as Articles 1 through 12 and 38 through 42, the ICPPED provides a comprehensive legal framework for addressing this issue at both national and international levels.
The process by which states enter into treaties like the ICPPED is shaped by domestic constitutional mechanisms and international norms, including those codified in the Vienna Convention on the Law of Treaties (1969). Whether a state follows a monist or dualist approach profoundly influences how treaty obligations are translated into national law, with implications for the speed and effectiveness of implementation. The VCLT’s principles of consent, interpretation, and good faith offer valuable guidance for states seeking to engage with the ICPPED, ensuring that their commitments are grounded in a robust legal foundation.
Ultimately, addressing the crisis of enforced disappearances requires not only legal frameworks but also political will, institutional capacity, and societal engagement. By ratifying and effectively implementing the ICPPED, states can move closer to a world where the unseen are seen, the unheard are heard, and justice prevails over impunity. The international community must continue to advocate for universal adherence to the convention, guided by the principles of international law, to ensure that this grave human rights violation is eradicated once and for all.
References
- International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the United Nations General Assembly on 20 December 2006, entered into force on 23 December 2010, A/RES/61/177.
- Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entered into force on 27 January 1980, 1155 U.N.T.S. 331.
- Office of the United Nations High Commissioner for Human Rights (OHCHR). (n.d.). International Convention for the Protection of All Persons from Enforced Disappearance. Retrieved from https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-protection-all-persons-enforced
- Human Rights Watch. (2006, June 26). International Convention for the Protection of All Persons from Enforced Disappearance. Retrieved from https://www.hrw.org/news/2006/06/26/international-convention-protection-all-persons-enforced-disappearance
- International Review of the Red Cross. (1972, July 29). The Vienna Convention of 1969 on the Law of Treaties and Humanitarian Law. Retrieved from https://international-review.icrc.org/articles/vienna-convention-1969-law-treaties-and-humanitarian-law
