Unveiling Hidden Tragedies: The Impact of the International Convention on Combating Enforced Disappearances

Abstract
Enforced disappearances represent one of the most severe violations of human rights, leaving victims and their families in a state of perpetual uncertainty and suffering. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), adopted by the United Nations General Assembly in 2006, seeks to address this grave issue by establishing a robust legal framework to prevent such acts and ensure justice for victims. This article explores the impact of the ICPPED on global human rights practices, focusing on its provisions, legal mechanisms, and the challenges of implementation at the national level. It examines the treaty’s role in shaping international and domestic legal landscapes, the processes by which states enter into treaties under international law, and the implications of monist and dualist approaches to treaty incorporation. Additionally, it assesses whether the ICPPED operates within the framework of the Vienna Convention on the Law of Treaties (VCLT) 1969 and discusses the broader implications for other states in engaging with this critical human rights instrument.

Introduction

Enforced disappearances constitute a profound violation of human rights, characterized by the abduction or detention of individuals by state agents or with state acquiescence, followed by a refusal to acknowledge their fate or whereabouts. This practice, often used as a tool of political repression, leaves families in anguish and undermines the rule of law. The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), adopted by the United Nations General Assembly on December 20, 2006, through Resolution A/RES/61/177, marks a significant milestone in the global fight against this crime. Entering into force on December 23, 2010, as stipulated in Article 39(1), the convention has been signed by 98 states and ratified by 76 as of August 2024, reflecting a growing international commitment to combating this issue (United Nations Office of the High Commissioner for Human Rights [OHCHR], 2024).

This article analyzes the impact of the ICPPED on international and national efforts to prevent enforced disappearances, focusing on its legal provisions, the mechanisms for state compliance, and the challenges of translating international obligations into domestic law. It also explores the legal frameworks by which states enter into treaties, using the ICPPED as a case study, and examines whether the treaty operates under the principles of the Vienna Convention on the Law of Treaties (VCLT) of 1969. Additionally, the article addresses the monist and dualist approaches to treaty incorporation into national law, providing a comprehensive overview of how states can align with international human rights standards.

The Legal Framework of the ICPPED

The ICPPED is designed to prevent enforced disappearances, ensure accountability, and provide remedies to victims. Its provisions define enforced disappearance under Article 2 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 establishes a clear legal standard for identifying and prosecuting such acts.

Under Article 1, the convention declares that no exceptional circumstances, such as war or public emergency, can justify enforced disappearances, thereby establishing it as a non-derogable right. States parties are obligated under Article 3 to investigate acts of enforced disappearance and bring perpetrators to justice, while Article 4 mandates that such acts be criminalized under domestic law as offenses carrying appropriate penalties. Furthermore, Article 24 ensures victims’ rights to truth, justice, and reparation, emphasizing the importance of addressing the needs of families affected by disappearances (ICPPED, 2006).

The treaty also establishes the Committee on Enforced Disappearances under Article 26, tasked with monitoring state compliance through periodic reports, urgent actions, and individual communications. This mechanism enhances accountability by providing a platform for victims to seek redress and for states to demonstrate adherence to their obligations. The ICPPED’s comprehensive framework not only sets normative standards but also fosters international cooperation through provisions such as mutual legal assistance under Article 14 and extradition under Article 13.

Impact on Global Human Rights Practices

Since its entry into force, the ICPPED has had a transformative impact on global human rights practices by providing a specialized instrument to combat enforced disappearances. Unlike earlier frameworks, such as the 1992 Declaration on the Protection of All Persons from Enforced Disappearance, the ICPPED is legally binding on states parties, compelling them to adopt concrete legislative and judicial measures. For instance, states like Argentina and Uruguay, with histories of enforced disappearances during military dictatorships, have incorporated the convention’s provisions into national laws, strengthening mechanisms for prosecution and victim reparation (Amnesty International, 2011).

The convention has also raised awareness about the plight of victims and their families, fostering a global dialogue on accountability and transitional justice. By defining enforced disappearance as a crime against humanity under Article 5 when committed as part of a widespread or systematic attack, the ICPPED aligns with the Rome Statute of the International Criminal Court, reinforcing international criminal accountability. Moreover, the Committee on Enforced Disappearances has played a critical role in addressing individual cases, such as issuing urgent actions to locate disappeared persons in countries like Mexico, where the issue remains prevalent (OHCHR, 2024).

However, the impact of the ICPPED is limited by uneven ratification and implementation. As of 2024, only 76 states have ratified the treaty, leaving significant gaps in regions with high incidences of enforced disappearances, such as parts of Asia and Africa. Even among ratifying states, challenges remain in translating international obligations into effective national mechanisms due to political resistance, weak judicial systems, or lack of resources (Human Rights Watch, 2006).

Legal Mechanisms for Entering Treaties Under the ICPPED

The process by which states enter into treaties like the ICPPED is governed by international law, particularly the principles outlined in the Vienna Convention on the Law of Treaties (VCLT) of 1969. Although the ICPPED itself does not explicitly reference the VCLT in its text, it operates within the broader framework of treaty law codified by the VCLT, which is widely regarded as reflecting customary international law. Articles 11 to 15 of the VCLT articulate the means by which states express consent to be bound by a treaty, including signature, ratification, acceptance, approval, or accession (VCLT, 1969).

Specifically, under Article 39(1) of the ICPPED, the convention entered into force on the thirtieth day after the deposit of the twentieth instrument of ratification or accession with the Secretary-General of the United Nations. This provision mirrors the VCLT’s procedural norms under Article 24, which governs the entry into force of treaties. States wishing to become parties to the ICPPED must follow these processes, typically involving domestic approval by legislative or executive bodies before depositing their instrument of ratification or accession with the UN Secretary-General (ICPPED, 2006).

The legal capacity of a state to enter into treaties under international law, including the ICPPED, depends on its constitutional framework. While the ICPPED does not specify internal state procedures for treaty-making, it implicitly relies on states adhering to their domestic legal requirements for consent, as reinforced by Article 27 of the VCLT, which states that a party may not invoke internal law as justification for failure to perform treaty obligations. Thus, a state’s ability to legally enter into the ICPPED hinges on the alignment of its domestic constitutional processes with international legal standards.

Monist vs. Dualist Approaches to Treaty Incorporation

The incorporation of international treaties like the ICPPED into national law depends on whether a state follows a monist or dualist approach to international law. In a monist system, international law is automatically part of domestic law upon ratification, requiring no further legislative action for its provisions to be directly applicable. Countries like France and the Netherlands often adopt this approach, where treaties, once ratified, have direct effect in national courts, provided they are self-executing (Shaw, 2017).

Conversely, in a dualist system, international treaties do not automatically become part of domestic law; they require specific legislative action to be enacted as national statutes. States such as the United Kingdom and Australia follow this model, where parliamentary approval or the passage of implementing legislation is necessary before treaty obligations can be enforced domestically. For the ICPPED, this means that dualist states must enact laws criminalizing enforced disappearance (as required by Article 4) and establishing victim reparation mechanisms (as per Article 24) through domestic legislation (Cassese, 2005).

Since the query does not specify a particular country, this analysis remains general. However, a state’s approach to treaty incorporation significantly affects how the ICPPED is translated into national law. In monist states, provisions like the right to truth and non-derogability under Articles 1 and 24 may be directly invoked in courts if the treaty is self-executing. In dualist states, however, the effectiveness of the ICPPED depends on the quality and speed of domestic legislative reforms to align with treaty obligations. This distinction often results in varying levels of compliance and enforcement across different jurisdictions.

The ICPPED and the Vienna Convention on the Law of Treaties (1969)

The relationship between the ICPPED and the Vienna Convention on the Law of Treaties (VCLT) of 1969 is a critical aspect of understanding how states engage with this human rights instrument. The VCLT, adopted on May 23, 1969, codifies customary international law on the formation, interpretation, and termination of treaties. While the ICPPED was adopted much later in 2006 and does not explicitly reference the VCLT, it is implicitly governed by its principles, as the VCLT applies to all treaties between states concluded after its entry into force on January 27, 1980, under Article 4, or to treaties reflecting customary law even for non-parties (VCLT, 1969).

As a treaty under international law, the ICPPED adheres to VCLT rules on consent (Articles 11-15), entry into force (Article 24), and obligations (Article 26, pacta sunt servanda). Importantly, the ICPPED’s procedural provisions for ratification and accession align with VCLT standards, ensuring that states follow internationally recognized processes when becoming parties. This alignment informs other countries on how to properly enter into treaties with the ICPPED: they must adhere to VCLT principles, ensuring that their consent is expressed through authorized representatives and in accordance with domestic constitutional requirements (Brownlie, 2008).

For states considering ratification of the ICPPED, the VCLT framework provides clarity on legal commitments. For instance, under Article 18 of the VCLT, states that have signed but not yet ratified a treaty are obliged to refrain from acts that would defeat its object and purpose. This principle applies to the ICPPED, encouraging signatory states to avoid policies or actions that facilitate enforced disappearances during the interim period before ratification. Furthermore, the VCLT’s emphasis on good faith in treaty performance (Article 26) reinforces the ICPPED’s call for genuine efforts to prevent disappearances and investigate cases.

However, not all states are parties to the VCLT, and while its provisions are largely considered customary international law, discrepancies in interpretation or application may arise. For non-VCLT states engaging with the ICPPED, reliance on customary norms ensures a baseline of procedural fairness, but differences in domestic legal systems can complicate uniform implementation. This highlights the importance of capacity-building and technical assistance for states to harmonize their treaty practices with international standards.

Challenges and Opportunities in Implementation

Despite its legal and moral significance, the ICPPED faces numerous challenges in implementation. One primary obstacle is the lack of universal ratification, with major powers and conflict-prone states yet to join the treaty. For example, countries like the United States and the United Kingdom have not ratified the ICPPED, limiting its global reach (House of Commons Library, 2011). Political will remains a significant barrier, as governments may resist criminalizing enforced disappearance or establishing accountability mechanisms due to fear of exposing past or ongoing abuses.

Additionally, in states with weak institutional frameworks, implementing the ICPPED’s requirements—such as independent investigations under Article 3 or victim reparation under Article 24—can be resource-intensive and logistically challenging. Corruption, lack of judicial independence, and inadequate training for law enforcement further hinder compliance. For instance, in regions like Latin America, despite progress in legislative alignment with the ICPPED, practical enforcement remains inconsistent due to systemic issues (Amnesty International, 2011).

Nevertheless, the ICPPED presents opportunities for transformative change. Its Committee on Enforced Disappearances offers technical guidance and monitoring, helping states build capacity to address disappearances. Civil society organizations also play a crucial role in advocating for ratification and implementation, as seen in recent developments in Thailand, where ratification in 2024 marked a significant step toward justice and accountability (International Commission of Jurists, 2024).

Conclusion

The International Convention for the Protection of All Persons from Enforced Disappearance stands as a cornerstone in the fight against one of the most egregious human rights violations. By establishing a binding legal framework, defining enforced disappearance, and mandating state accountability, the ICPPED has reshaped global and national approaches to this issue. Its impact, though significant in ratifying states, remains constrained by uneven implementation and limited universal acceptance. The treaty’s alignment with the Vienna Convention on the Law of Treaties (1969) provides a procedural foundation for states to engage with it, offering lessons on treaty-making and compliance for the international community.

The distinction between monist and dualist systems further underscores the diverse pathways through which states translate international obligations into domestic law, affecting the ICPPED’s effectiveness. As the global community continues to grapple with enforced disappearances, the ICPPED serves as both a beacon of hope and a call to action, urging states to unveil hidden tragedies and ensure justice for victims. Future efforts must focus on universal ratification, capacity-building, and overcoming political resistance to fully realize the convention’s transformative potential.

References

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International Commission of Jurists. (2024). Thailand: Ratification of the Convention on Enforced Disappearance an important step for justice and accountability. Retrieved from https://www.icj.org/thailand-ratification-of-the-convention-on-enforced-disappearance-an-important-step-for-justice-and-accountability/

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