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Parties and signatories to the ICCPR:      signed and ratified      signed but not ratified      neither signed nor ratified

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of October 2009, the Covenant had 72 signatories and 165 parties.[1]

The ICCPR is part of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).[2]

The International Covenant on Civil and Political Rights is monitored by the Human Rights Committee (a separate body to the Human Rights Council which replaced the Commission on Human Rights, under the UN Charter in 2006) with permanent standing, to consider periodic reports submitted by member States on their compliance with the treaty. Members of the Human Rights Committee are elected by member states, but do not represent any State.

Contents

Genesis

The ICCPR has its roots in the same process that led to the Universal Declaration of Human Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference which led to the founding of the United Nations, and the Economic and Social Council was given the task of drafting it.[2] Early on in the process, the document was split into a declaration setting forth general principles of human rights, and a convention or covenant containing binding commitments. The former evolved into the UDHR and was adopted on December 10, 1948.[2]

Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights.[3] These eventually caused the convention to be split into two separate covenants, "one to contain civil and political rights and the other to contain economic, social and cultural rights."[4] The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously.[4] Each would also contain an article on the right of all peoples to self-determination.[5]

The first document became the International Covenant on Civil and Political Rights, and the second the International Covenant on Economic, Social and Cultural Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966.[6]

Summary

The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.[7]

Part 1 (Article 1) recognises the right of all peoples to self-determination, including the right to "freely determine their political status",[8] pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence,[9] and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.[10]

Part 2 (Articles 2 - 5) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights.[11] It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,"[12] and to ensure that they are enjoyed equally by women.[13] The rights can only be limited "in time of public emergency which threatens the life of the nation,"[14] and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion.[15]

Part 3 (Articles 6 - 27) lists the rights themselves. These include rights to

  • physical integrity, in the form of the right to life and freedom from arbitrary execution, torture, and slavery (Articles 6, 7, and 8);
  • liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Article 9);
  • procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Articles 10, 11, 14, 15, and 16);
  • individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 - 24);
  • political participation, including the right to join a political party and the right to vote (Article 25);
  • Non-discrimination and equality before the law (Articles 26 and 27).

Many of these rights include specific actions which must be undertaken to realise them.

Part 4 (Articles 28 - 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise the competence of the Committee to resolve disputes between parties on the implementation of the Covenant (Articles 41 and 42).

Part 5 (Articles 46 - 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".[16]

Part 6 (Articles 48 - 53) governs ratification, entry into force, and amendment of the Covenant.

Core provisions

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Rights to physical integrity

Article 6 of the Covenant recognises the "inherent right of the individual to life" Article 6 has been criticised by some human rights organisations[citation needed] for specifically excluding the death penalty from its scope. This was a pragmatic move to ensure wide adoption of the convention in states such as the United States The abolition of the death penalty is instead optionally The Second Optional Protocol abolishes the death penalty for those parties too it,

Article 7 prohibits torture and cruel, inhuman or degrading punishment, in response to Nazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent

Articles 8.1 and 8.2 represent a total prohibition of slavery and forced servitude in all situations, this can be contrasted with Article 8.3 the prohibition on forced labour, which includes several exceptions for criminal punishment, military service and civil obligation

Liberty and security of the person

Procedural fairness and rights of the accused

Individual liberties

Political rights

Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independantly and can only be relied upon in relation to another right protected by the ICCPR.

In contrast, Article 26 contains a revolutionary and unique norm by providing an autonomous equality principle which is not dependant upon another right under the convention being infringed. This has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR.

Optional protocols

There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant.[17] This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of September 2009, the First Optional Protocol has 113 parties.[18]

The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death penalty for the most serious crimes of a military nature, committed during wartime.[19] As of October 2009, the Second Optional Protocol had 72 parties.[20]

Reservations

A number of parties have made reservations and interpretative declarations to their application of the Covenant.

Argentina will apply the fair trial rights guaranteed in its constitution to the prosecution of those accused of violating the general law of nations.[1]

Australia reserves the right to progressively implement the prison standards of Article 10, to compensate for miscarriages of justice by administrative means rather than through the courts, and interprets the prohibition on racial incitement as being subject to the freedoms of expression, association and assembly. It also declares that its implementation will be effected at each level of its federal system.[1]

Austria reserves the right to continue to exile members of the House of Habsburg, and limits the rights of the accused and the right to a fair trial to those already existing in its legal system.[1]

The Bahamas due to problems with implementation reserves the right not to compensate for miscarriages of justice.[1]

Bahrain interprets Articles 3 (no sexual discrimination), 18 (freedom of religion) and 23 (family rights) within the context of Islamic Sharia law.[1]

Bangladesh reserves the right to try people in absentia where they are fugitives from justice and declares that resource constraints mean that it cannot necessarily segregate prisons or provide counsel for accused persons.[1]

Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.[1]

Belgium interprets the freedoms of speech, assembly and association in a manner consistent with the European Convention on Human Rights. It does not consider itself obliged to ban war propaganda as required by Article 20, and interprets that article in light of the freedom of expression in the UDHR.[1]

National implementation and effects

The International Covenant on Civil and Political Rights has been signed by 174 states, 8 of which have yet to ratify the treaty.[1]

New Zealand

While New Zealand has not incorporated the ICCPR into law, it took measures to give effect to many of the rights contained within it by passing the New Zealand Bill of Rights Act in 1990.

United States

Reservations, understandings, and declarations

The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[21] Some have noted that with so many reservations, its implementation has little domestic effect.[22] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[23] and in a Senate Executive Report stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts."[24]

Effect on domestic law

Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is ostensibly binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation.

International law

Prominent critics in the human rights community, such as Prof. Louis Henkin[25] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[26] ("Rarely has a treaty been so abused.") have denounced the United States' ratification subject to the non-self-execution declaration as a blatant fraud upon the international community, especially in light of its subsequent failure to conform domestic law to the minimum human rights standards as established in the Covenant over the last fifteen years. In 1994, the United Nations' Human Rights Committee expressed similar concerns:

Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.[27]

Indeed, the United States has not accepted a single international obligation required under the Covenant. It has not changed its domestic law to conform with the strictures of the Covenant. See Hain v. Gibson, 287 F.3d 1224 (10th Cir. 2002) (noting that Congress has not done so). Its subjects are not permitted to sue to enforce their basic human rights under the Covenant, as noted above. It has not ratified the Optional Protocol. As such, the Covenant has been rendered ineffective, with the bone of contention being United States officials' insistence upon preserving a vast web of sovereign, judicial, prosecutorial, and executive branch immunities that often deprives its subjects of the "effective remedy" under law the Covenant is intended to guarantee. In 2006, the Human Rights Committee expressed concern over what it interprets as material non-compliance, exhorting the United States to take immediate corrective action:

The Committee notes with concern the restrictive interpretation made by the State party of its obligations under the Covenant, as a result in particular of … (b) its failure to take fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights prescribed by the Covenant; and (c) its restrictive approach to some substantive provisions of the Covenant, which is not in conformity with the interpretation made by the Committee before and after the State party’s ratification of the Covenant.

The State party should review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. The State party should in particular … (b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.[28]

(available at <http://tb.ohchr.org/default.aspx?country=us>)

As a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of international law, Vienna Convention on the Law of Treaties, art. 19, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980) (specifying conditions under which signatory States can offer "reservations"), there is some issue as to whether the non-self-execution declaration is even legal under domestic law.

States not member of the Covenant

The majority of states in the world are parties to the ICCPR. As of September 2009 the following 29 states have either not yet signed the convention, or have signed but have not yet ratified the convention.[29]

Signed but not ratified
  1. China (1998-10-05);
  2. Comoros (2008-09-25);
  3. Cuba (2008-02-28);
  4. Guinea-Bissau (2000-09-12);
  5. Laos (2000-12-07);
  6. Nauru (2001-11-12);
  7. Pakistan (2008-04-17);
  8. São Tomé and Príncipe (1995-10-31).
Neither signed nor ratified
  1. Antigua and Barbuda;
  2. Bhutan;
  3. Brunei;
  4. Burma (Myanmar);
  5. Fiji;
  6. Kiribati;
  7. Malaysia;
  8. Marshall Islands;
  9. Micronesia;
  10. Oman;
  11. Palau;
  12. Qatar;
  13. Saint Kitts and Nevis;
  14. Saint Lucia;
  15. Saudi Arabia;
  16. Singapore;
  17. Solomon Islands;
  18. Tonga;
  19. United Arab Emirates;
  20. Vanuatu;
  21. Vatican City (through the Holy See).
signed, non membership
  1. Taiwan(Republic of China) [30]

References and notes

  1. ^ a b c d e f g h i j "UN Treaty Collection: International Covenant on Civil and Political Rights". UN. 2009-02-24. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en. Retrieved 2009-10-12. 
  2. ^ a b c "Fact Sheet No.2 (Rev.1), The International Bill of Human Rights". UN OHCHR. June 1996. http://www.unhchr.ch/html/menu6/2/fs2.htm. Retrieved 2008-06-02. 
  3. ^ Sieghart, Paul (1983). The International Law of Human Rights. Oxford University Press. p. 25. 
  4. ^ a b United Nations General Assembly Resolution 543, February 5, 1952.
  5. ^ United Nations General Assembly Resolution 545, February 5, 1952.
  6. ^ United Nations General Assembly Resolution 2200, December 16, 1966.
  7. ^ The following section summarises the text of the Covenant.
  8. ^ ICCPR, Article 1.1.
  9. ^ ICCPR, Article 1.2.
  10. ^ ICCPR, Article 1.3.
  11. ^ ICCPR, Article 2.2, 2.3.
  12. ^ ICCPR, Article 2.1.
  13. ^ ICCPR, Article 3.
  14. ^ ICCPR, Article 4.1.
  15. ^ ICCPR, Article 4.2.
  16. ^ ICCPR, Article 47.
  17. ^ OP1-ICCPR, Article 1.
  18. ^ "UN Treaty Collection: Optional Protocol to the International Covenant on Civil and Political Rights". UN. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en. Retrieved 2009-10-12. 
  19. ^ OP2-ICCPR, Article 2.1
  20. ^ "UN Treaty Collection: Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty". UN. http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-12&chapter=4&lang=en. Retrieved 2009-10-12. 
  21. ^ U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992).
  22. ^ Black, Allinda; Hopkins, June, eds (2003). "Covenant on Civil and Political Rights". The Eleanor Roosevelt Papers. Hyde Park, New York: Eleanor Roosevelt National Historic Site. http://www.gwu.edu/~erpapers/teachinger/glossary/cov-civilpol-rights.cfm. Retrieved February 21, 2009. 
  23. ^ 138 Cong. Rec. S4781-84 (1992)
  24. ^ S. Exec. Rep. No. 102-23 (1992)
  25. ^ Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346 (1995)
  26. ^ Jordan J. Paust, International Law As Law Of the United States 375 (2d ed. 2003)
  27. ^ Hum. Rts. Comm. General Comment No. 24 (52), para. 11, 18-19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994)
  28. ^ Concluding Observations of the Human Rights Comm.: United States of America, U.N. Doc. No. CCPR/C/USA/CO/3/Rev.1, para. 10 (2006)
  29. ^ Status of the International Covenant on Civil and Political Rights , United Nations Treaty Collection, March 9, 2009.
  30. ^ The ROC lost its United Nations seat in 1971 (replaced by the China),the Republic of China government has signed the Couvenant in 1967. Democratic Taiwan has signed again in 2009.

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