26 First Optional Protocol to ICCPR

Anupama Sharma

Learning Outcomes

This chapter will give an understanding of the purpose of the Optional protocol and its effect. It will reflect on the importance of Human Rights Committee role with respect to complaint received by the individuals. It also discusses the conditions required for state to be bound by this Optional Protocol and the procedure for denunciation of the protocol. Moreover, if the state party needs to propose any amendments to the protocol, then the procedure that is to be complied with is also discussed in this chapter.

Students after studying this module are expected to have an elementary understanding of the text of the Optional Protocol and its scope.

Introduction

As explained in Module 2, Part IV of the covenant deals with the process of establishment of a Human Rights Committee which has certain responsibilities to fulfil. The Covenant also specifies that procedure in case of communication received by one party by the other party regarding the non-fulfillment of duties under the covenant by the former State. Part IV clarifies the role of the committee in such situations. This Optional Protocol is in furtherance to the explanation and provision provided by the covenant and helps in achieving the purpose and objectives of the covenant. It elaborates on the role of Human Rights Committee and provides the state parties with an option to abide by the Optional protocol and give the committee to authority to consider the concerned communications by ‘individuals’.

‘Optional’ Protocol (Article 1-7)

The requirement of approving involvement of the Human Rights Committee is essential not just to ensure that the provisions of the covenant are implemented well and the objective is achieved but by giving the prerogative to an ‘option’ of abiding to the protocol assures autonomy to the state parties.

It is possible for state parties to abide by the covenant by becoming a party to it and yet refrain from application of this Protocol as it is ‘Optional’ in nature. By agreeing to the provisions of the optional protocol, a state party gives the authority to the committee to receive and consider communications from the individuals against the state which is a party to the covenant. It is should be noticed that only communications which deals with state which is a ‘party’ to the ICCPR (covenant) will be considered by the committee and for no other state which is not a party to the covenant.

The Optional Protocol elaborates the procedure for filing of communication by the individuals. The communication must relate to violation of any right enshrined of the covenant. It should be filed only after exhaustion of all the domestic remedies and should not be under consideration by any other international investigation. Once these conditions are fulfilled, an individual can file a ‘written’ communication to the committee. If any of the communication is anonymous or incompatible with the covenant or an abuse of the privilege given to the individuals to file a communication then the committee has the power to deem such communication as ‘inadmissible’.

Once the committee receives a written and admissible communication, it can provide the same to the State party alleged to be the violator of the rights enshrined under the covenant. The purpose of this exercise is to provide state with an opportunity to clarify their actions and submit a ‘written’ response/explanation within six months.

The committee will then consider all submissions from the both the sides (individual and the concerned state party), it can hold closed meetings for the process of examining the communication, post which the committee will send its observations to the individual as well as the concerned state party. While considering the complaint there are various factors to be considered to understand if the complaint is genuine or not. The factors which are taken into consideration such as whether the complaint deals with treaties provisions, whether all other remedies have been complied with, complainant is not abusing the process, etc. have been explained in detail in a document focused on handling Individual Complaints as released by United Nations titled as Individual Complaint Procedures under the United Nations Human Rights Treaties.

Relevant extracts from the document has been taken from the UN website and put below for easy reference:-

Admissibility of the complaint as provided on http://www.ohchr.org/Documents/Publications/FactSheet7Rev.2.pdf

Before a committee can consider a complaint on its merits or substance, it must be satisfied that the formal requirements of admissibility are met. When examining admissibility, it may consider one or several of the following factors:
If the complainant is acting on behalf of another person, has he or she obtained sufficient authorization or otherwise justified the reasons for doing so?
Is the complainant (or the person on whose behalf the complaint is brought) a victim of the alleged violation? It has to be shown that the alleged victim is personally and directly affected by the law, policy, practice, act or omission of the State party which constitutes the object of the complaint. It is not sufficient simply to challenge a law or State policy or practice in the abstract (so-called actio popularis) without demonstrating how the alleged victim is individually affected.
Is the complaint compatible with the provisions of the treaty invoked? The alleged violation must relate to a right actually protected by the treaty. For instance, a complaint filed under the
Optional Protocol to the International Covenant on Civil and Political Rights cannot concern a violation of the right to property, since the Covenant does not protect that right. In such a case, the claim would be, in legal terms, inadmissible ratione materiae.
Is the committee in question required to review the facts and evidence in a case already decided by national courts? The committees are competent to consider possible violations of the rights guaranteed by the treaties concerned, but not to act as an appellate instance with respect to national courts and tribunals. They cannot, in principle, examine the determination of the administrative, civil or criminal liability of individuals, nor can they review the question of innocence or guilt.
Is the complaint sufficiently substantiated? If the relevant committee considers, in the light of the information before it, that the complainant has not sufficiently presented / described the facts and arguments, it may reject the case as insufficiently substantiated and thus inadmissible.
Does the complaint relate to events that occurred after the entry into force of the complaint mechanism for the State party concerned? As a rule, a committee does not examine complaints if the facts occurred before this date, as the complaint would be regarded as inadmissible ratione temporis. There are, however, exceptions to this rule, for instance if the effects of the event in question result in a continuous violation of the treaty.
Has the same matter been submitted to another international body? If it has been submitted to another treaty body or to a regional mechanism, such as the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the European Court of Human Rights, the African Commission on Human and Peoples’ Rights or the African Court on Human and Peoples’ Rights, the committees cannot examine the complaint. This rule aims to prevent unnecessary duplication at the international level. If the matter has been submitted to another body, the complainant should indicate this in the original complaint, specifying the body to which it was submitted.
Have all domestic remedies been exhausted? As indicated before, a cardinal principle governing the admissibility of a complaint is that the complainant must first have exhausted all relevant remedies that are available in the State party before bringing a claim to a committee. This usually includes pursuing the claim through the local court system, unless there is sufficient evidence that proceedings at the national level have been unreasonably prolonged or would plainly be ineffective. Detailed reasons must be provided as to why the complainant considers that the general rule should not apply. Mere doubts about the effectiveness of a relevant remedy do not, in the committees’ view, dispense with the obligation to exhaust it. Furthermore, if the State party concerned considers that domestic remedies have not been exhausted, it must provide details of the effective remedies available.
Is the complaint precluded by a reservation made by the State to the treaty in question? A State may have entered a substantive reservation to the treaty or a procedural reservation to the complaint mechanism limiting a committee’s competence to examine certain communications.
Is the complaint an abuse of the procedure? In some cases, a committee may consider a claim to be a frivolous, vexatious or otherwise inappropriate use of the complaint procedure and reject it as inadmissible, for example if the same individual repeatedly brings claims to the committee on the same issue although the previous ones have already been dismissed.
In cases where the complaints are of an urgent nature, then the Committee may request the State to prevent the irreparable damage by adopting certain interim measures till the time the Committee is able to come to a final decision on the communication.
The decision of a complaint is either is either in favour or against or partly both. The decision is then communicated to both the author and the state.

Did you know?

According to the records of June 2004, the number of complaints that had been registered with the Committee were 1,295. The committee declared 362 out of them as inadmissible and it considered 452 on the merits of the case.

The Sample Individual Complaint format as given on the UN Human Rights website has been povided below for the convenient reference:-

Annex I MODEL FORM FOR THE SUBMISSION OF COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, THE CONVENTION AGAINST TORTURE OR THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

Please indicate which of the above procedures you are invoking: …………. ……………………………………………………………………………………….

Date: ………………………………………………………………………………..

Information on the complainant

Name: …………………………..First name(s): ………………………………….

Nationality: ……………………..

Date and place of birth: …………………….

Address for correspondence on this complaint:

……………………………………………………………………………………….

Submitting the communication: on your own behalf F or on behalf of another person F If the complaint is being submitted on behalf of another person, please provide the following details of that other person:

Name: …………………………..First name(s): ………………………………….

Nationality: ……………………..

Date and place of birth: …………………….

Address or current whereabouts: ………………………………………………..

……………………………………………………………………………………….

If you are acting with the knowledge and consent of that person, please provide that

person’s authorization for you to bring this complaint

……………………………………………………………………………………….

If you are not so authorized, please explain the nature of your relationship with that

person:…………………………………………………………………..

and detail why you consider it appropriate to bring this complaint on his or her behalf:

………………………………………………………………………….

……………………………………………………………………………………….

State concerned/articles violated Name of the State that is either a party to the Optional Protocol (for complaints to the Human Rights Committee) or has made the relevant declaration (for complaints to the Committee against Torture or the Committee on the Elimination of Racial Discrimination): ……………………………………………

Articles of the Covenant or Convention alleged to have been violated: ……

……………………………………………………………………………………….

Exhaustion of domestic remedies/application to other international procedures

Steps taken by or on behalf of the alleged victims to obtain redress within the State concerned for the alleged violation. Detail which procedures have been pursued, including recourse to the courts and other public authorities, which claims you have made, when and with which outcomes:

……………

……………………………………………………………………………………….

…………………………………………………………….

If you have not exhausted these remedies because their application would be unduly prolonged, they would not be effective, they are not available to you or for any other reason, please explain your reasons in detail: ………..

……………………………………………………………………………………….

………………………………………………….

Have you submitted the same matter for examination under another procedure of international investigation or settlement (e.g., the Inter-American Commission on Human Rights, the European Court of Human Rights or the African Commission on Human and Peoples’ Rights)?

Yes:

No:

If so, detail which procedure(s) have been, or are being, pursued, which claims you have

made, when and with which outcomes: …………………………………………………………………

IV. Facts of the complaint Detail, in chronological order, the facts and circumstances of the alleged violations. Include all matters which may be relevant to the assessment and consideration of your particular case. Please explain how you consider that the facts and circumstances described violate your rights……………………………………………………………………………………………………………..

Author’s signature: …………………………………………………………………

[The dotted lines simply indicate where your responses are required. You should take as much space as you need.]

Supporting documentation (copies, not originals, to be enclosed with your complaint)

Written authorization to act (if you are bringing the complaint on behalf of another person and are not otherwise justifying the absence of specific authorization)
Decisions of domestic courts and authorities on your claim (a copy of the relevant national legislation is also helpful)
Complaints to and decisions by any other procedure of international investigation or settlement
Any documentation or other corroborating evidence you possess that substantiates your description in part IV of the facts of your claim and/ or your argument that the facts described amount to a violation of your rights.

If you do not enclose this information and it needs to be sought specifically from you, or if accompanying documentation is not provided in the working languages of the secretariat (English, French, Spanish or Russian), the consideration of your complaint may be delayed.

(Article 7-14)

These articles provide with the provisions relating to signing of the protocol by the state parties and procedure for proposing and acceptance of amendments. It is provided in the optional protocol that if any state is a party to the covenant, then the optional protocol is available to it for signing. It is subject to ratification and is open to accession by any such state party to the covenant. The Secretary General provides with the state parties to the covenant about the deposit of each instrument of accession or ratification.

The provision under the optional protocol once ratified and accession submitted will extend to all parts of the state devoid of any limitation, from three months from the submission of ratification or accession.

Just as Article 51 (as discussed in chapter 2) provides with procedure for proposal of amendments by the state parties and how the amendments are accepted and further included in the covenant, similarly, Article 11 of the Optional Protocol provides with the procedure for amendments to the protocol. It states that the state party to the protocol can propose the amendment which is further communicated to other state parties by the Secretary General seeking their response to whether a conference need be organize for discussion. It is organized if not less than one-third of the state parties favours such conference. If any amendment is accepted by the majority in the conference convened by the Secretary General, then that amendment is sent for approval to the General Assembly of the United Nations. It will be included in the protocol if approved by the General Assembly and accepted by two-thirds majority of State parties to the protocol and it must be in accordance with the constitutional process of each of these state parties. Only those states who accepted the amendment will be bound by it.

Article 12 of the protocol provides a discretion to the state party to denounce the present protocol by following specified procedure of written notification which is addressed to the Secretary General of the UN. Only after three months from the receipt of this notification by Secretary General, is the denunciation functional.

Below is provided an Information Box which has been taken from the UN Human Rights website, which elaborates upon the details on how a covenant can be rejected or denounced by the State parties:-

Box I.3. Can the Covenant be rejected or denounced by a State that no longer wishes to be bound by it?

What about new States emerging from the break-up of an old State that was a party to the treaty?

Unlike many treaties, the concluding provisions of the Covenant do not provide for denunciation of the treaty allowing a State party to withdraw from the treaty regime. In these circumstances, the Committee has taken the view that in the light of the particular character of human rights treaties such as the Covenant, which extend basic rights and freedoms to persons within a State party’s jurisdiction, these rights and freedoms may not be withdrawn once confirmed. Accordingly, once a State has ratified the Covenant, it is not permitted to withdraw from its obligations by denouncing the treaty. Likewise, States parties may not denounce the Second Optional Protocol, which does not contain any provisions on denunciation either. In contrast, the first Optional Protocol specifically sets out a denunciation procedure. A related issue is the situation in terms of ongoing applicability of the Covenant when a State party to the Covenant breaks up into a series of successor States. Applying a similar approach, the Committee has taken the view that a successor State succeeds to a predecessor State’s obligations under the Covenant. Thus, for example, the Committee views Kazakhstan as being bound by the Covenant, as a successor State to the USSR, which was a State party at the time of its dissolution. Generally, this precise situation does not arise, as successor States have acted to confirm the applicability of the Covenant in their jurisdictions, such as by making a declaration of succession. Similarly, when the United Kingdom and Portugal, as States parties to the Covenant, returned sovereignty over Hong Kong and Macau respectively to China, China agreed to apply the Covenant obligations in those territories, even though it was not itself a State party to the Covenant.

Conclusion

This chapter dealt with the content of Optional protocol, its effect and applicability. It reflected on the essentiality of Human Rights Committee’s role with respect to complaint received by the individuals. It also discussed the rules with respect to state’s compliance to the protocol. It also specified the procedure for denunciation of the protocol. The module also covered the procedural step involved for proposal of any amendments to the protocol, if any.

you can view video on First Optional Protocol to ICCPR

Reference

Shelton, Remedies in International Human Rights law (Oxford University Press, 1999)
Goodman, Human Rights Treaties, Invalid Reservations and State Consent (2002) AJIL 531
Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (Martinus Nijhoff, 1995)
Moeckli, Shah, Sivakumaran, International Human Rights law (Oxford University Press, 2010)
Human Rights: Civil and Political Rights: The Human Rights Committee, Fact Sheet No. 15 (Rev.1), available at www.ohchr.org (Also helpful for chapter 1&2)
Human Rights: Civil and Political Rights: The Human Rights Committee, Fact Sheet No. 7 (Rev.2), available at www.ohchr.org