28 International Covenant on Civil and Political Rights – Part 2

Anupama Sharma

Learning Outcomes

This module will give an understanding of the signing, ratification, interpretation and structure of ICCPR. It will discuss the various procedures recognized under the covenant. The module will take us the through the content which has not been covered in Module 1 relating to ICCPR. The module will discuss in detail the formation of Human right committee and the concerning procedures as laid down in the covenant. It also covers the monitoring requirement on the state’s progress and if state fails to submit timely report then what is the mechanism to monitor the progress. Students after studying this module are expected to have an elementary understanding of the text of the covenant and its scope.

Introduction

Module 1 dealt with the first three parts of the covenant which focused on the various rights enshrined in the covenant. The remaining three parts will be dealt with in this module. However, both Module 1 and 2 must be studied in conjunction for proper understanding. Part IV, V and VI of the covenant elaborates on the structure and formation of the Human Rights Committee along with its role and duties. It also specifies that process of signing and ratifying the covenant by the state parties and the rules of interpretation of the covenant for its proper implementation. These parts provide backbone to the rights enshrined in the covenant. The requirement of the state parties to submit the report detailing the progress of implementation of the rights within their state, is a strong measure to monitor the adoption and adaptation of the covenant. These parts also elaborate upon the procedure for communications filed by one state regarding the non-fulfillment of duties by the other state.

PART IV (Articles 28-45): This part provides with the structure for the formation of Human Rights Committee (HRC) which consists of 18 members. These members are selected through an election process of secret ballot. The nominated candidate have to be nationals of the State parties and to ensure their competence in the relevant field, it is provided in the covenant that the members must have competence in the area of human rights. There is a bar of two nomination per state to facilitate equal participation and representation, however re-nomination is permissible.

The process of election is as follows:-

It is required that the Secretary General of the United Nations invites the state parties to submit their nomination for membership within 3 months. Such invitation must be sent to the States atleast four months prior to the date of each election. The list of nominees will then be consolidated by the Secretary General in the alphabetical order along with the State party which nominated the candidate. This list is then circulated with all the State parties atleast one month prior to the date of election.

The election takes place at the UN headquarters where two thirds of the state parties to this covenant form the quorum. Those who gather highest number of votes and absolute majority of the votes of the members present and voting.

The bar of two nominations per state is followed by a bar of one member per state while formation of the final committee. This is primarily to ensure the balances and equal representation of geographical distribution and civilization.

The tenure for the members of the Committee is fixed for four years. But nine members who are chosen by lot by the Chairman of the meeting have to leave the Committee at the end of two years after the first election.

In cases of death/resignation/ceasure of work by the member the seat is declared vacant by the Secretary General of the UN. If the tenure of the ‘left’ member is remaining for more than six months, then the Secretary General notifies the states to submit the nomination and the procedure for election is followed.

The committee is generally required to meet at the headquarters of the UN or the UN office at Geneva. The committee is given freedom to make its own rules for procedure but subject to certain conditions as prescribed in Article 39 of the Covenant.

The covenant provides for a mechanism to maintain a review on the progress of the state parties with respect to implementation of the rights enshrined under the covenant. As per Article 40, each state party is required to submit a report to the Secretary General within one year since the covenant was adopted by the state party. Apart from this, they are required to submit the report, as and when the committee demands it. The Secretary General then hands over the reports to the Committee who then studies them (the factors and impediments specified by the state party in implementing the rights under the covenant.) and gives comments on the progress of the state.

The purpose of such an arrangement has been very aptly explained in the ‘Information Boxes’ as provided in the Fact Sheet on UN website. This box has been provided below for convenient reference:-

There have been cases where states failed to submit the report on a timely basis and for a considerable period of time there was no submission from the State’s end. In such situations, the committee is rendered unable to monitor the progress in these states. To cater to this problem, the committee in 2001 decided that the committee can examine the record of the state even when there is no report available. This will be not affected even in cases where there is no delegation by the state. The committee then on the basis of the limited information available makes a report which is provisional in nature. This report is also sent to the concerned state and may be made public as well. The most important determinant in such action of review without any report is taken by the committee, is the amount of delay in submitting the report.

In its General Comment 30 [75], the Human Rights Committee has elaborated on state’s obligation to submit report. In the comment, the committee firstly stresses the affirmation on the part of states who undertook the responsibility of submitting such report under Article 40 of the Covenant within a year of its entry and further whenever they are asked to do so. Unfortunately the data depicts that states have not been taking this requirement very seriously as a result of which few states submitted reports with a delay ranging from months to years whereas there are states who refrained from submitting any report despite repeated reminders thereby putting themselves at disobedience of rule. Few states gave an assurance to present themselves but failed at materializing this assurance. To deal with this scenario, it was decided that information will be sent to the state that its report is to be considered and should send a delegate. A date of the meeting is fixed on which the report is dealt with either in the presence or absence. This is done to ensure that state doesn’t let the procedural to bypass so easily. After the committee completes its observation, it takes forward a follow up with the State party concerned and can appoint a Special Rapporteur for this purpose whose work is to report to the Committee. Depending on the report that the Special Rapporteur submits the committee will take its further action.

The extract of the General Comment No. 30 [75] Reporting Obligations of States parties under article 40 of the Covenant Adopted on 16 July 2002 (2025th meeting) and an extract from General Comment : The Nature of the General Legal Obligation has been taken from the UN website and has been provided in the box below for easy reference:

General Comment No. 30 [75] Reporting Obligations of States parties under article 40 of the Covenant Adopted on 16 July 2002 (2025th meeting)

This General Comment would replace former General Comment 1 1. States parties have undertaken to submit reports in accordance with article 40 of the Covenant within one year of its entry into force for the States parties concerned and, thereafter, whenever the Committee so requests. 2. The Committee notes, as appears from its annual reports, that only a small number of States have submitted their reports on time. Most of them have been submitted with delays ranging from a few months to several years and some States parties are still in default, despite repeated reminders by the Committee. 3. Other States have announced that they would appear before the Committee but have not done so on the scheduled date. 4. To remedy such situations, the Committee has adopted new rules: (a) If a State party has submitted a report but does not send a delegation to the Committee, the Committee may notify the State party of the date on which it intends to consider the report or may proceed to consider the report at the meeting that had been initially scheduled; (b) When the State party has not presented a report, the Committee may, at its discretion, notify the State party of the date on which the Committee proposes to examine the measures taken by the State party to implement the rights guaranteed under the Covenant: (i) If the State party is represented by a delegation, the Committee will, in presence of the delegation, proceed with the examination on the date assigned; (ii) If the State party is not represented, the Committee may, at its discretion, either decide to proceed to consider the measures taken by the State party to implement the guarantees of the Covenant at the initial date or notify a new date to the State party. For the purposes of the application of these procedures, the Committee shall hold its meetings in public session if a delegation is present, and in private if a delegation is not present, and shall follow the modalities set forth in the reporting guidelines and in the rules of procedure of the Committee. 5. After the Committee has adopted concluding observations, a follow-up procedure shall be employed in order to establish, maintain or restore a dialogue with the State party. For this purpose and in order to enable the Committee to take further action, the Committee shall appoint a Special Rapporteur, who will report to the Committee. 6. In the light of the report of the Special Rapporteur, the Committee shall assess the position adopted by the State party and, if necessary, set a new date for the State party to submit its next report.

An extract from General Comment 31: The Nature of the General Legal Obligation

Imposed on States Parties to the Covenant

The article 2, paragraph 1, obligations are binding on States parties and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights insofar as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States parties of those rights, as a result of States parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States parties to address the activities of private persons or entities. For example, the privacy-related guarantees of article 17 must be protected by law. It is also implicit in article 7 that States parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.

Communications from other state:

Under Article 41, it is up to the prerogative of the state party to give authority to the committee to accept and consider the communications by the other state party over the fulfillment or non-fulfillment of the obligations by the former state. If the state has not made such declaration of giving authority then no such communication can be received by the committee as per Article 41. It is essential for the state party receiving such communication to respond to it within three months. If the matter is not resolved to the satisfaction of both the state parties within six months from the initial communication then either party has the right to refer the matter to the committee.

The committee will take over the matter only after ensuring that all the domestic remedies has been exhausted. If the parties are not satisfied with the resolution by the committee, then with the consent of the state parties, an ad hoc Conciliation Commission may be formed as per the rules provided in Article 42.

Part V (Articles 46-47) of the covenant deals with the interpretation of the covenant and lays down that the interpretation of the covenant should not impair the Charter of the UN as well as the constitution of specialized agencies of various organs of the UN. Moreover, covenant also restricts the interpretation such that it doesn’t hamper the free right of the people to enjoy their wealth and resources.

Part VI (Articles 48-53), which is the last part of the covenant, describes the process of signing and ratification of the covenant by the state parties. The following state can become parties to the covenant:-

• – Any state member of the UN
• – Or of its specialized agency
• – Or state party to the Statue of International Court of Justice
• – Any state party invited by the UN to become party to the covenant.

The covenant is also subject to ratification. Once the instrument of ratification is deposited with the Secretary General, the covenant enters into force within three months from that time. State parties are also allowed to propose amendments to the covenant which can be allowed if approved by the General Assembly of the UN and if accepted by two-thirds majority of the state parties. The amendments will bind the state parties who have accepted it.

The Information Box provided below summarizes the content very concisely:-

Box I.1. How does a State agree to be bound by the terms of a treaty such as the Covenant and its Optional Protocols?

A State can become party to a treaty in one of two main ways. Firstly, it can sign the treaty, following which, according to the rules of international law, the State may not act contrary to the objects and purposes of the treaty. Signature is followed by ratification. In depositing an instrument of ratification, a State formally indicates its intent to be bound by the treaty. Alternatively, a State can accede to a treaty. Accession, whereby a State that has not signed a treaty agrees to be bound by it, is equivalent to ratification. The treaty in question typically provides a short period of time after the date of ratification or accession before the State is actually bound by the terms of the treaty. In the case of the Covenant, this is three months. For further details on these steps, refer to the Treaty Handbook of the United Nations of the Office of Legal Affairs, accessible at: http://untreaty.un.org/ola-internet/Assistance/ handbook_eng/hbframeset.htm.

Conclusion

This chapter took us through the remaining content of ICCPR which wasn’t covered in chapter 1. It deals with the structure of the Human Rights Committee, its formation and the related procedure. It also deals with the monitoring on the progress and compliance of the state parties with respect to the content of the covenant. If the state fails in submitting a report then what is the recourse available to ensure monitoring of progress has also been dealt with.

Reference

1. Human Rights Committee, General Comment 24, HRI/GEN/1/Rev.9 (Vol I) 210
2. Human Rights Committee, General Comment 31, HRI/GEN/1/Rev.9 (Vol I) 243
3. Moeckli, Shah, Sivakumaran, International Human Rights law (Oxford University Press, 2010).
4. The International Covenant on Civil and Political Rights: Cases, Materials, Sarah Joseph, Melissa Castan (Oxford University Press)
5. http://www.law.uci.edu/lawreview/vol3/no1/kaye.pdf (State Execution of the International Covenant on Civil and Political Rights)
6. Human Rights: Civil and Political Rights: The Human Rights Committee, Fact Sheet No. 15 (Rev.1), available at www.ohchr.org