International Covenant on Civil and Political Rights
Encyclopedia
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. , the Covenant had 74 signatories and 167 parties.
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 Human Rights Committee
(a separate body to the 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.
. 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 December 10, 1948.
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 Economic, Social and Cultural Rights
and the second the International Covenant on Civil and Political Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966. Because of political reasons was the International Covenant on Economic, Social and Cultural Rights adopted shortly before the International Covenant on Civil and Political Rights.
Part 1 (Article 1) recognises 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
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.
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.
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 it to be imposed only in exceptional circumstances and for as short a period of time as possible.
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.
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.
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.
Article 16 requires states to recognize everyone as a person before the law.
, including the right of persons to choose their residence and to leave 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 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 18 mandates freedom of religion.
Article 19 mandates freedom of expression.
Article 20 mandates sanctions against inciting hatred.
Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade union
s and also defines the International Labour Organisation.
Article 23 mandates the right of marriage. The wording of this provision excludes coverage of same-sex couples from protection by this marriage right, however it does not prohibit the recognition of same-sex marriage by a signatory country.
Article 24 mandates the right to a nationality.
In contrast, Article 26 contains a revolutionary 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.
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. , the First Optional Protocol has 114 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. , the Second Optional Protocol had 73 parties.
Argentina will apply the fair trial rights guaranteed in its constitution
to the prosecution of those accused of violating the general law of nations.
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.
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.
Bahamas, due to problems with implementation, reserves the right not to compensate for miscarriages of justice.
Bahrain interprets Articles 3 (no sexual discrimination), 18 (freedom of religion) and 23 (family rights) within the context of Islamic Sharia law.
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.
Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.
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.
Congo, as per the Congolese Code of Civil, Commercial, Administrative and Financial Procedure, in matters of private law, decisions or orders emanating from conciliation proceedings may be enforced through imprisonment for debt.
Denmark reserves the right to exclude the press and the public from trials as per its own laws. Reservation is further made to Article 20, paragraph 1. This reservation is in accordance with the vote cast by Denmark in the XVI General Assembly of the United Nations in 1961 when the Danish Delegation, referring to the preceding article concerning freedom of expression, voted against the prohibition against propaganda for war.
Gambia, as per it's constitution, will provide free legal assistance for accused persons charged with capital offences only.
The United States has made reservations that none of the articles should restrict the right of free speech and association
; that the US government may impose capital punishment
on any person other than a pregnant woman, including persons below the age of 18; that "cruel, inhuman and degrading treatment or punishment" refers to those treatments or punishments prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the US Constitution; that Paragraph 1, Article 15 will not apply; and that, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14, the US government may treat juveniles as adults, and accept volunteers to the military prior to the age of 18. The United States also submitted five "understandings", and four "declarations".
in 1990.
ratified the ICCPR in 1992, with five reservations
, five understandings, and four declarations. Some have noted that with so many reservations, its implementation has little domestic effect. Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing", 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."
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 within the U.S. judicial system 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.
Prominent critics in the human rights community, such as Prof. Louis Henkin
(non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust ("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:
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:
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.
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
adopted by the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
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
Right to life
Right to life is a phrase that describes the belief that a human being has an essential right to live, particularly that a human being has the right not to be killed by another human being...
, freedom of religion
Freedom of religion
Freedom of religion is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance; the concept is generally recognized also to include the freedom to change religion or not to follow any...
, freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, electoral rights and rights to due process and a fair trial. , the Covenant had 74 signatories and 167 parties.
The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
(ICESCR) and the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
(UDHR).
The ICCPR is monitored by the Human Rights Committee
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...
(a separate body to the Human Rights Council
United Nations Human Rights Council
The United Nations Human Rights Council is an inter-governmental body within the United Nations System. The UNHRC is the successor to the United Nations Commission on Human Rights , and is a subsidiary body of the United Nations General Assembly...
), 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.
Genesis
The ICCPR has its roots in the same process that led to the Universal Declaration of Human RightsUniversal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference
United Nations Conference on International Organization
The United Nations Conference on International Organization was a convention of delegates from 50 Allied nations that took place from 25 April 1945 to 26 June 1945 in San Francisco, California. At this convention, the delegates reviewed and rewrote the Dumbarton Oaks agreements...
which led to the founding of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
, and the Economic and Social Council
United Nations Economic and Social Council
The Economic and Social Council of the United Nations constitutes one of the six principal organs of the United Nations and it is responsible for the coordination of the economic, social and related work of 14 UN specialized agencies, its functional commissions and five regional commissions...
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 December 10, 1948.
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 Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
and the second the International Covenant on Civil and Political Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966. Because of political reasons was the International Covenant on Economic, Social and Cultural Rights adopted shortly before the International Covenant on Civil and Political Rights.
Summary
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) recognises the right of all peoples to self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
, 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
Legal remedy
A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....
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
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
and slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
, the freedom from retrospective law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the 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 detentionArbitrary arrest and detentionArbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law...
and the right to habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
(Articles 9 – 11); - procedural fairness in law, in the form of rights to due process, a fair and impartial trialRight to a fair trialThe right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
, the presumption of innocencePresumption of innocenceThe presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
, 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, familyFamilyIn human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
rights, the right to a nationality, and the right to privacyPrivacyPrivacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
(Articles 12, 13, 17 – 24); - prohibition of any propaganda for warWarWar is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
as well as any advocacy of national or religious hatred that constitutes incitementIncitementIn English criminal law, incitement was an anticipatory common law offence and was the act of persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime....
to discriminationDiscriminationDiscrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
, hostility or violence by law (Article 20); - political participation, including the right to join a political party and 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
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...
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
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 mortalityInfant mortality
Infant mortality is defined as the number of infant deaths per 1000 live births. Traditionally, the most common cause worldwide was dehydration from diarrhea. However, the spreading information about Oral Re-hydration Solution to mothers around the world has decreased the rate of children dying...
and increase life expectancy
Life expectancy
Life expectancy is the expected number of years of life remaining at a given age. It is denoted by ex, which means the average number of subsequent years of life for someone now aged x, according to a particular mortality experience...
, 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
Convention on the Prevention and Punishment of the Crime of Genocide
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly on 9 December 1948 as General Assembly Resolution 260. The Convention entered into force on 12 January 1951. It defines genocide in legal terms, and is the culmination of...
. 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
Second Optional Protocol to the International Covenant on Civil and Political Rights
The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty is a side agreement to the International Covenant on Civil and Political Rights. It was created on 15 December 1989, and entered into force on 11 July 1991. As of...
commits its signatories to the abolition of the death penalty within their borders.
Article 7 prohibits torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
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
United Nations Convention Against Torture
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world....
, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement. In response to Nazi human experimentation
Nazi human experimentation
Nazi human experimentation was a series of medical experiments on large numbers of prisoners by the Nazi German regime in its concentration camps mainly in the early 1940s, during World War II and the Holocaust. Prisoners were coerced into participating: they did not willingly volunteer and there...
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
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
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
, 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 it to be imposed only in exceptional circumstances and for as short a period of time as possible.
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
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 courtPublic trial
Public trial or open trial is a trial open to public, as opposed to the secret trial. The term should not be confused with show trial.-United States:...
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
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
cases or to protect the interests of children. These obligations apply to both criminal and civil hearings, and to all courts and tribunals.
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
Rights of the accused
The rights of the accused is a "class" of civil and political rights that apply to a person accused of a crime, from when he or she is arrested and charged to when he or she is either convicted or acquitted...
and the right to a fair trial
Right to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
. It establishes the Presumption of innocence
Presumption of innocence
The presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
and forbids double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
. It requires that those convicted of a crime be allowed to appeal to a higher tribunal, and requires victims of a Miscarriage of justice
Miscarriage of justice
A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other direction—"errors of impunity", and to civil cases. Most criminal justice systems have some means to overturn, or "quash", a wrongful...
to be compensated. It establishes rights to a speedy trial
Speedy trial
Speedy trial refers to one of the rights guaranteed by the United States Constitution to defendants in criminal proceedings. The right to a speedy trial, guaranteed by the Sixth Amendment, is intended to ensure that defendants are not subjected to unreasonably lengthy incarceration prior to a fair...
, to counsel
Right to counsel
Right to counsel is currently generally regarded as a constituent of the right to a fair trial, allowing for the defendant to be assisted by counsel , and if he cannot afford his own lawyer, requiring that the government should appoint one for him/her, or pay his/her legal expenses...
, against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
, and for the accused to be present and call and examine witnesses
Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are...
.
Article 15 prohibits prosecutions under Ex post facto law
Ex post facto law
An ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
and the imposition of retrospective criminal penalties
Nullum crimen, nulla poena sine praevia lege poenali
Nullum crimen, nulla poena sine praevia lege poenali is a basic maxim in continental European legal thinking...
, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.
Article 16 requires states to recognize everyone as a person before the law.
Individual liberties
Article 12 guarantees freedom of movementFreedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
, including the right of persons to choose their residence and to leave 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 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 18 mandates freedom of religion.
Article 19 mandates freedom of expression.
Article 20 mandates sanctions against inciting hatred.
Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade union
Trade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
s and also defines the International Labour Organisation.
Article 23 mandates the right of marriage. The wording of this provision excludes coverage of same-sex couples from protection by this marriage right, however it does not prohibit the recognition of same-sex marriage by a signatory country.
Article 24 mandates the right to a nationality.
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 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 ProtocolFirst Optional Protocol to the International Covenant on Civil and Political Rights
The First Optional Protocol to the International Covenant on Civil and Political Rights is an international treaty establishing an individual complaint mechanism for the International Covenant on Civil and Political Rights . It was adopted by the UN General Assembly on 16 December 1966, and entered...
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. , the First Optional Protocol has 114 parties.
The Second Optional Protocol
Second Optional Protocol to the International Covenant on Civil and Political Rights
The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty is a side agreement to the International Covenant on Civil and Political Rights. It was created on 15 December 1989, and entered into force on 11 July 1991. As of...
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. , the Second Optional Protocol had 73 parties.
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
Constitution of Argentina
The constitution of Argentina is one of the primary sources of existing law in Argentina. Its first version was written in 1853 by a Constitutional Assembly gathered in Santa Fe, and the doctrinal basis was taken in part from the United States Constitution...
to the prosecution of those accused of violating the general law of nations.
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.
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.
Bahamas, due to problems with implementation, reserves the right not to compensate for miscarriages of justice.
Bahrain interprets Articles 3 (no sexual discrimination), 18 (freedom of religion) and 23 (family rights) within the context of Islamic Sharia law.
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.
Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.
Belgium interprets the freedoms of speech, assembly and association in a manner consistent with the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. 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.
Congo, as per the Congolese Code of Civil, Commercial, Administrative and Financial Procedure, in matters of private law, decisions or orders emanating from conciliation proceedings may be enforced through imprisonment for debt.
Denmark reserves the right to exclude the press and the public from trials as per its own laws. Reservation is further made to Article 20, paragraph 1. This reservation is in accordance with the vote cast by Denmark in the XVI General Assembly of the United Nations in 1961 when the Danish Delegation, referring to the preceding article concerning freedom of expression, voted against the prohibition against propaganda for war.
Gambia, as per it's constitution, will provide free legal assistance for accused persons charged with capital offences only.
The United States has made reservations that none of the articles should restrict the right of free speech and association
Free association
Free association may refer to:*Free association , a clinical technique of psychoanalysis devised by Sigmund Freud*Free Association, a musical group formed by David Holmes for the Code 46 soundtrack...
; that the US government may impose capital punishment
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
on any person other than a pregnant woman, including persons below the age of 18; that "cruel, inhuman and degrading treatment or punishment" refers to those treatments or punishments prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the US Constitution; that Paragraph 1, Article 15 will not apply; and that, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14, the US government may treat juveniles as adults, and accept volunteers to the military prior to the age of 18. The United States also submitted five "understandings", and four "declarations".
National implementation and effects
The International Covenant on Civil and Political Rights has 167 states parties, 67 by signature and ratification, and the remainder by accession or succession. Another five states have signed but have yet to ratify the treaty.Australia
The covenant is not enforceable in Australia, however, AHRC legislation allows the Australian Human Rights Commission (AHRC) to examine enacted legislation (to suggest remedial enactments), its administration (to suggest avoidance of practices ) and general compliance with the covenant which is schedule to the AHRC legislation.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 ActNew Zealand Bill of Rights Act
The New Zealand Bill of Rights Act 1990 is a statute of the New Zealand Parliament setting out the rights and fundamental freedoms of the citizens of New Zealand as a Bill of rights...
in 1990.
Reservations, understandings, and declarations
The United States SenateUnited States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
ratified the ICCPR in 1992, with five reservations
Reservation (law)
A reservation in international law is a caveat to a state's acceptance of a treaty. By the 1969 Vienna Convention on the Law of Treaties , a reservation is defined as a...
, five understandings, and four declarations. Some have noted that with so many reservations, its implementation has little domestic effect. Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing", 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."
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 within the U.S. judicial system 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
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, 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
Louis Henkin
Louis Henkin , widely considered one of the most influential contemporary scholars of international law and the foreign policy of the United States, was a former president of the American Society of International Law and of the American Society for Political and Legal Philosophy and University...
(non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust ("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
Human Rights Committee
The United Nations Human Rights Committee is a United Nations body of 18 experts that meets three times a year for four-week sessions to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights,...
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.
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
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
, judicial
Judicial immunity
Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for official conduct in office, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.For...
, prosecutorial, and executive branch immunities
Sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution....
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 (a) its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (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 (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (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.
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 members of the Covenant
The majority of states in the world are parties to the ICCPR. the following 27 states have either not yet signed the convention, or have signed but have not yet ratified the convention.Signed but not ratified
-
People's Republic of China (1998-10-05)Except the Special Administrative RegionSpecial administrative regionA special administrative region, or SAR may be:People's Republic of China* Special Administrative Region of the People's Republic of China, self-governing country subdivision in Hong Kong and Macau...
of Hong Kong, in which the ICCPR is binding. See Human rights in Hong KongHuman rights in Hong KongHuman rights in Hong Kong occasionally comes under the spotlight of the international community because of its world city status. This is occasionally used as a yardstick by commentators to judge whether the People's Republic of China has kept its end of the bargain of the "One Country, Two...
. -
Comoros (2008-09-25) -
Cuba (2008-02-28) -
Nauru (2001-11-12) -
Palau (2011-09-20) -
São Tomé and Príncipe (1995-10-31) -
Saint Lucia (2011-09-22)
Neither signed nor ratified
-
Antigua and Barbuda -
Bhutan -
Brunei -
Myanmar (Myanmar) -
Fiji -
Kiribati -
Malaysia -
Marshall Islands -
Federated States of Micronesia -
Oman -
Qatar -
Saint Kitts and Nevis -
Saudi Arabia -
Singapore -
Solomon Islands -
Tonga -
Tuvalu -
United Arab Emirates -
Vatican City (through the Holy SeeHoly SeeThe Holy See is the episcopal jurisdiction of the Catholic Church in Rome, in which its Bishop is commonly known as the Pope. It is the preeminent episcopal see of the Catholic Church, forming the central government of the Church. As such, diplomatically, and in other spheres the Holy See acts and...
)
Non-members of the UN
-
Republic of China (Republic of ChinaRepublic of ChinaThe Republic of China , commonly known as Taiwan , is a unitary sovereign state located in East Asia. Originally based in mainland China, the Republic of China currently governs the island of Taiwan , which forms over 99% of its current territory, as well as Penghu, Kinmen, Matsu and other minor...
)The ROC lost its United Nations seat in 1971 (replaced as the representative of China by the People's Republic of China under Resolution 2758). The Republic of China government signed the Covenant in 1967 but not ratified; in 2009 Taiwan finally ratified it, but the deposit was rejected by UN. -
Republic of Kosovo Kosovo, although not a UN member state, is obliged to respect the ICCPR rights as a successor state to YugoslaviaYugoslaviaYugoslavia refers to three political entities that existed successively on the western part of the Balkans during most of the 20th century....
.
External links
- Text of the Covenant
- List of parties
- article 2 Bimonthly publication highlighting article 2 of the ICCPR