International Covenant of Civial & Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by United Nations General Assembly Resolution 2200A (XXI) on 16 December 1966.

The covenant 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 September 2019, the Covenant has 173 parties and six more signatories without ratification.

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

The ICCPR is monitored by the United Nations Human Rights Committee (a separate body to the United Nations Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year.

History

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. 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 10 December 1948.

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

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. 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.” The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously. Each would also contain an article on the right of all peoples to self-determination.

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. As a result of diplomatic negotiations the International Covenant on Economic, Social and Cultural Rights was adopted shortly before the International Covenant on Civil and Political Rights. Together, the UDHR and the two Covenants are considered to be the foundational human rights texts in the contemporary international system of human rights.

Articles of the Covenant

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

Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right to “freely determine their political status”, 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, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.

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. 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,” and to ensure that they are enjoyed equally by women. The rights can only be limited “in time of public emergency which threatens the life of the nation,” 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.

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 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 (Articles 9 – 11);
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 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);
prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20);
political participation, including the right to the right to vote (Article 25);
Non-discrimination, minority rights 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”.

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

Rights to physical integrity

Main articles: Right to life, Torture, and Slavery

Article 6 of the Covenant recognises the individual’s “inherent right to life” and requires it to be protected by law. It is a “supreme right” from which no derogation can be permitted, and must be interpreted widely. It therefore requires parties to take positive measures to reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.

While Article 6 does not prohibit the death penalty, it restricts its application to the “most serious crimes” and forbids it to be used on children and pregnant women or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide. The UN Human Rights Committee interprets the Article as “strongly suggest[ing] that abolition is desirable”, and regards any progress towards abolition of the death penalty as advancing this right. The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders.

Article 7 prohibits torture and cruel, inhuman or degrading punishment. As with Article 6, it cannot be derogated from under any circumstances. The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement. In response to Nazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.

Article 8 prohibits slavery and enforced servitude in all situations. The article also prohibits forced labour, with exceptions for criminal punishment, military service and civil obligations.

Liberty and security of person

Main article: Habeas corpus

Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.

Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge. It also restricts the use of pre-trial detention, requiring that it not be ‘the general rule’.

Article 10 requires anyone deprived of liberty to be treated with dignity and humanity. This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care. The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment. The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults. It requires prisons to be focused on reform and rehabilitation rather than punishment.

Article 11 prohibits the use of imprisonment as a punishment for breach of contract.

Procedural fairness and rights of the accused

Main articles: Rights of the accused and Right to a fair trial

Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public. Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children. These obligations apply to both criminal and civil hearings, and to all courts and tribunals. Article 14.3 mandates that litigants must be informed promptly and in detail in a language which they understand.

The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence and forbids double jeopardy. It requires that those convicted of a crime be allowed to appeal to a higher tribunal, and requires victims of a Miscarriage of justice to be compensated. It establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.

Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction. But except the criminal according to general principles of law recognized by international community. (jus cogens)

Article 16 requires states to recognize everyone as a person before the law.

Individual liberties

Main articles: Freedom of movement, Freedom of religion, Freedom of thought, Freedom of speech, Freedom of assembly, Freedom of association, and Right of Return

Article 12 guarantees freedom of movement, including the right of persons to choose their residence, to leave and return to a country. These rights apply to legal aliens as well as citizens of a state, and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others. The article also recognises a right of people to enter their own country; the right of return. The Human Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality. They also regard it as near-absolute; “there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable”.

Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.

Article 17 mandates the right of privacy. This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour, however, the wording of this covenant’s marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision. Article 17 also protects people against unlawful attacks to their honour and reputation. Article 17 (2) grants the protection of the law against such attacks.

Article 18 mandates freedom of religion or belief.

Article 19 mandates freedom of expression.

Article 20 mandates sanctions against inciting war and hatred.

Article 21 mandates freedom of assembly and 22 mandates freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and also defines the International Labour Organization.

Article 23 mandates the right of marriage. The wording of this provision neither requires nor prohibits same-sex marriage.

Article 24 mandates special protection, the right to a name, and the right to a nationality for every child.

Article 27 mandates the rights of ethnic, religious and linguistic minority to enjoy their own culture, to profess their own religion, and to use their own language.

Political rights

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

In contrast, Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependent 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. This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of September 2019, the First Optional Protocol has 116 parties.

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. As of September 2019, the Second Optional Protocol had 87 parties.