International Covenant on Civil and Political Rights

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States parties and signatories to the ICCPR: states parties in dark green, non-state parties signatories in light green, non-state parties non-signatories in grey
States parties and signatories to the ICCPR: states parties in dark green, non-state parties signatories in light green, non-state parties non-signatories in grey

The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. Nations that have signed this treaty are bound by it.

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. The Covenant contains two Optional Protocols. The first optional protocol creates an individual complaints mechanism whereby individuals in member States can submit complaints, known as communications, to be reviewed by the Human Rights Committee. Its rulings under the first optional protocol have created the most complex jurisprudence in the UN international human rights law system.

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[1].

Contents

[edit] Genesis

The ICESCR and the ICCPR have their roots in the same process that led to the Universal Declaration of Human Rights. As the UDHR was not expected to impose binding obligations, the United Nations Commission on Human Rights began drafting a pair of binding Covenants on human rights intended to impose concrete obligations on their parties[2]. Due to disagreements between member states on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights, two separate Covenants were created. These were presented to the UN General Assembly in 1954, and adopted in 1976.

[edit] Convention Provisions

Five Categories

  1. Protection on individual's physical integrity (against things such as execution, torture, and arbitrary arrest).
  2. Procedural fairness in law (rule of law, rights upon arrest, trial, basic conditions must be met when imprisoned, rights to a lawyer, impartial process in trial).
  3. Protection based on gender, religious, racial or other forms of discrimination.
  4. Individual freedom of belief, speech, association, freedom of press, right to hold assembly.
  5. Right to political participation (organise a political party, vote, voice contempt for current political authority).

Two Optional Protocols

  1. Mechanism by which individuals can launch complaints against member states.
  2. Abolition of the death penalty.

[edit] National implementation and effects

The International Covenant on Civil and Political Rights currently has 160 States Parties and a further 5 signatories (pending ratification). A country-by-country list of declarations and reservations made upon ratification, accession or succession can be seen at http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm.

[edit] New Zealand

New Zealand's Parliament implemented the ICCPR in domestic law by passing the New Zealand Bill of Rights Act in 1990.

[edit] United States

[edit] Reservations

The United States long resisted ratification. This was motivated by popular American dislike for the UN, but also out of a fear that the covenant's anti-death-penalty language could be used by domestic anti-death-penalty activists to litigate against capital punishment. The United States Senate ratified the ICCPR in 1992, with a number of reservations, understandings, and declarations; with so many, in fact, that its implementation has little domestic effect.[3] In particular, the Senate declared in 138 Cong. Rec. S4781-84 (1992) that "the provisions of Article 1 through 27 of the Covenant are not self-executing", and in S. Exec. Rep., No. 102-23 (1992) stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts."

[edit] 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.

[edit] International law

Prominent critics in the human rights community, such as Prof. Louis Henkin[4] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[5] ("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.[6]

In effect, the United States "resembles that remark," as it 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.[7]

(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. At any rate, the United States is but a signatory in name only.

[edit] States not member of the Covenant

The majority of states in the world are states parties to the ICCPR. The following states are not states parties as of July 2007 (some of these states have signed the Covenant):

  1. Antigua and Barbuda
  2. Bahamas
  3. Bhutan
  4. Brunei
  5. China[8]
  6. Comoros
  7. Cuba[9]
  8. Fiji
  9. Guinea-Bissau[10]
  10. Kiribati
  11. Laos[11]
  12. Malaysia
  13. Marshall Islands
  14. Micronesia
  15. Myanmar (Burma)
  16. Nauru[12]
  17. Oman
  18. Pakistan
  19. Palau
  20. Papua New Guinea
  21. Qatar
  22. Saint Kitts and Nevis
  23. Saint Lucia
  24. Samoa
  25. São Tomé and Príncipe[13]
  26. Saudi Arabia
  27. Singapore
  28. Solomon Islands
  29. Tonga
  30. United Arab Emirates
  31. Vanuatu
  32. Vatican City

[edit] References & notes

  1. ^ Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Article 2.1
  2. ^ Paul Sieghart, The International Law of Human Rights, Oxford University Press, 1983, pp 25 - 26.
  3. ^ Covenant on Civil and Political Rights, Hyde Park, New York: Elanor Roosevelt National Historical Site, 2003, <http://www.nps.gov/archive/elro/glossary/cov-civilpol-rights.htm>. Retrieved on 2008-05-06 
  4. ^ Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346 (1995)
  5. ^ Jordan J. Paust, International Law As Law Of the United States 375 (2d ed. 2003)
  6. ^ Hum. Rts. Comm. General Comment No. 24 (52), para. 11, 18-19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994)
  7. ^ 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)
  8. ^ Signed on 1998-10-05.
  9. ^ Signed on 2008-02-28.
  10. ^ Signed on 2000-09-12.
  11. ^ Signed on 2000-12-07.
  12. ^ Signed on 2001-11-12.
  13. ^ Signed on 1995-10-31.

[edit] External links

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