27 International Covenant on Civil and Political Rights – Part I

Anupama Sharma

Learning Outcomes

This module gives an understanding of the origin, scope and structure of ICCPR. It discusses the various rights recognized under the covenant. It also explains how there is a requirement in the covenant on its state parties to comply with the duties mentioned in the covenant. It prevents infliction of violations by the state on its citizens and also concerns the laws relating to marriage which it aims to protect. Special attention has been given to unlawful detention of people and their rights involved. Students after studying this module are expected to have an elementary understanding of the text of the covenant and its scope.

Introduction

The series of International documents pertaining to human rights started with the adoption of United Nations Charter in 1945. Owing to its generality, the need for specific instruments was soon realized, which resulted in framing of Universal Declaration of Human Rights (UDHR) in 1948, followed by International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). These three instruments: UDHR, ICESCR and ICCPR are collectively referred to as International Bill of Human Rights as drafted by the United Nations.

This module focuses on one of these three main instruments i.e. International Covenant on Civil and Political Rights (ICCPR). As the name suggests ICCPR deals with the ‘civil and political’ rights. There is a major difference between the covenant on civil and political rights when compared with the covenant on economic, social and cultural rights as the former ensures immediate realization of the rights whereas the latter focusses on progressive realization of the rights. The difference exists due to the varying nature of the rights being dealt with in the covenant.

ICCPR was adopted on 16 December 1966 and came into force on 23 March 1976. It is divided in six parts and has two Optional Protocols to it. 168 states are party to this covenant. The preamble to the covenant specifies the purpose of the covenant as “recognizing the inherent dignity and equal and inalienable rights of the members of the human family as this forms the foundation of freedom, justice and peace in the world.”1 It also recognizes that free environment can be achieved with the enjoyment of civil and political rights. The states while becoming party to this covenant agree to abide by the purpose for which ICCPR has been framed.

This chaper focusses on Part I-III of the covenant which describes the various rights protected under the covenant. These rights are:-

Right of Self determination

Right to life

Right against torture/degrading treatment

Right to Property

Right against forced labour, etc.

PART I of ICCPR (Article 1)

Part 1 just deals with 1 article which refers to Right of Self Determination. Self – determination also sometimes addressed as ‘rights of peoples and minorities’ is the right which the group of people as an entity with respect to their political participation and economic, social and cultural control as an entity/group, for eg. Rights of minorities. The importance for recognition of this right is embedded in the existing or potential issues regarding group rights in almost all parts of the world.

ICCPR states that under this right, people should be free to dispose their personal resources and wealth and there should be a situation that people are deprived of their own means of subsistence. The covenant obligates the state parties to respect the right and ensure its conformity.

This definition has been used in many other conventions. This definition falls short in explaining all the aspects of the rights. The meaning of the term ‘group’ that is referred to is the one provided by UNESCO experts, i.e.:-

Common features required for a ‘group’ are: historical tradition, ethnicity, cultural homogeneity, common economic life, etc. It is essential to note that the right to self-determination also applies to people in colonial territories. This was confirmed by International Court of Justice in Namibia Opinion and Western Sahara Case.

As the covenant stresses on the ‘exercise’ of the rights, it is essential to know the methods for such exercise. The Declaration on Principles of International Law provides with those methods.

PART II of ICCPR (Articles 2-5)

Article 2 requires the state to follow ‘no discrimination’ policy on the basis of race, colour, sex, origin of birth etc. It mandates the State parties to ensure that legislative measures are undertaken to absorb the rights provided in this covenant and to make them available to the public and give necessary effect to their rights. It requires the State parties to have effective remedy in place to address the breach of right and competent judicial, executive and legislative authorities to determine such remedies.

This article focuses on the effective realization of rights rather than granting any specific right. For ‘effective realization’ it is not only important to make the rights available with the people but also to have remedies in place to deal with the situations of breach.

The general approach in case of International law has been to give states enough discretion with respect to discharge of duties under the law. However this approach is not a safe one in case of human rights. A tripartite strategy has been adopted by UN human rights treaties and that is:

Respect, Protect, and Fulfil.

Respect: States are expected to realize the essence and importance of a right and has negative responsibility to not breach the right. There should neither be a conscious and direct breach nor any inherent or indirect breach.

Protect: For complete realization of a human right it is important to protect any breach of such right. It is the duty of the state to ensure that rights of the people are not breached by third parties. The expectation is not unrealistic. The state will be responsible only to the extent where there was enough hint for the state to gauge the breach and then it failed to prevent it. As rightly stated in Velasquez Rodriguez v. Honduras : “An illegal act which has violated human right and is not directly imputable to a state, can lead to state’s internationally responsibility because of its lack of due diligence in preventing the violation.”

Fulfil: This entails putting an obligation on the States to actively ensure realization of the rights. This can be done by providing people with the rights eg right to vote. It includes adoption of the rights with administrative, legislative and judicial measures. There should also be remedy available in case of breach of the rights.

Article 3 fosters equality between man and woman by obligating the State party to ensure equal enjoyment of civil and political rights by them. The idea behind this such right is to live by the concept of all human being having the same human rights to avail. However, this also recognizes that fact that in certain situations for justified reasons, states might need to treat people differently.

Article 4 clarifies that the rights under this covenant are not absolute. Subject to emergency situation where there is threat to the life of the nation and its existence is officially proclaimed, then the State party (Except for few articles as mentioned in the covenant) can derogate from its obligations under the covenant. Right to be free from torture is an absolute which can in no circumstances be derogated from. Largely, the situations when human rights can be validly derogated are:-

(1). Where the treaty specifically provides with a provision listing the situations where human rights can be limited in its operation.

(2). At the time of emergency, it is permissible to the states to derogate from the duties under the treaty as long as there is emergency which makes it impossible to preserve all the rights and secure them.

It is to be noted that limitation doesn’t extend to abuse of rights by the state. It merely elaborates the boundaries of exercise of right. To ensure this, the limitation must be justified on the grounds of :-

(i). When law prescribes it: The law should prescribing it in the form of laws as instruments which the Parliament adopts. The idea behind this is by such a limitation prescribed in law, ensures foreseeability of rights and laws. And the fact that limitations must be those required in the domestic laws further justifies the requirement of ‘prescribed by law’ as this way the legislature adopts the law and not just the executive.

(ii). When a legitimate aim is to be pursued: This requirement indicates the ‘social need which is of importance and not just ordinary’ eg, nation’s security, public peace and order, etc.

(iii). Limitation is necessary: It ensures the balance of proportionality between the need and the action taken. The gravity of limitation exercised over the right is compared and analyzed as against the need and the importance of the right.

It is the state who carries the burden to prove that its actions are justified with valid reasons and cannot just take the excuse that it is the best judge for the benefit of its people.

This relaxation that has been given to the State parties required certain safeguards to prevent any abuse. To address this, the article states that the derogation must not be inconsistent with other obligations, it should not involve discrimination solely on grounds of origin, race, colour, etc. It is also mandatory on the part of the State parties to inform other signatories about such derogation as per the prescribed procedure.

Article 5 further guards from the interpretation of the statue which permits destruction of any of the rights mentioned in this covenant.

PART III (Articles 6- 27)

Part III of the ICCPR is the longest part which deals with the maximum number of rights under the covenant. It mentions rights such as:-

Right to life, which guards against any arbitrary deprivation of life. It also specifies certain restrictions and rules to be followed by the countries which follow Death penalty.

Right against torture or cruel, inhuman or degrading treatment: It is an absolute right and in no circumstances is the derogation allowed.

The part III also covers rights against slavery, forced labour. It specifies right to liberty and security of person except in cases where due procedure is established and is followed. Those who have been arrested should have recourse to courts and appropriate remedies against unlawful detentions. Even for those who have been deprived of their liberty must be treated with dignity. The covenant also provides with free movement and entry in/to one’s territory. The Human Rights Human Rights Committee issues ‘General Comments’ for more clarity with respect to certain provisions. On the issue of deprivation of liberty, the Human Rights Human Rights Committee in the General Comment 8 stated that: “Article 9 of ICCPR which gives right to liberty is applicable to all deprivations of liberty, whether in criminal cases or in other cases eg, mental illness, immigration control, etc.”3 Only if the deprivation is unlawful or arbitrary will it constitute deprivation of liberty. This general comment was later replaced by General Comment 35 released on 16th December 2014. The comment stresses on role of state by stating: “States parties have the duty to take appropriate measures to protect the right to liberty of person against deprivation by third parties. States parties must protect individuals against abduction or detention by individual criminals or irregular groups, including armed or terrorist groups, operating within their territory. They must also protect individuals against wrongful deprivation of liberty by lawful organizations, such as employers, schools and hospitals. States parties should do their utmost to take appropriate measures to protect individuals against deprivation of liberty by the action of other States within their territory.”

But even in those situations where such deprivation is justified, it does absolve the state of its obligations completely. The state in such circumstance will be responsible for providing the detainee whose right has been deprived with certain rights as safeguards. Those rights are as follows:-

1. Right to be informed about why the detention has taken place.

2. Right to be treated as a humane and not in a cruel manner

3. Right for the legality of detention to be challenged

4. Remedies must also be provided in case the detention is unlawful.

Many provisions under ICCPR provides the safeguards, for eg. Article 10 states that during the stage of pre-trial, the individual must be kept away from the convicted criminals and should be treated with respect and as an innocent till the time it is proven that the person is guilty. Moreover it also expects the State to design the conviction format in way that it leads to rehabilitation of offenders.

Part III in detail states the right of equal treatment before the courts and tribunals and ensures right to recognition before law. It lists down certain minimum guarantees to ensure full equality. It also provides for special treatment for juveniles so that they don’t have to live throughout their life with a tag of being a criminal. Moreover, it also states that if at the time of commission of the act, it was not an offence then later one cannot be held guilty for it.

The purpose is the appropriate administration of justice. By the ‘right to fair trial’, what is guaranteed is the fair process and it doesn’t relate to the ‘outcome’ of the judicial process. The procedural aspect however involves recourse to the judicial process and the rights to due process. Under article 26 of  ICCPR, the right to equality before court is granted and that entails the right to move to the court and this should be exercised equally and without discrimination. The other rights which fall in this ambit and are guaranteed in the ICCPR are as follows:-

1. Equal access
2. Hearing by a tribunal which not partial and is also competent
3. Hearing should be fair and public in nature

In cases of criminal proceedings, there is a special category of rights granted, such as:-

1. Right against self-incrimination
2. There will be a presumption with respect to the innocence of the accused, unless proven guilty.
3. The person must be given a right wherein he is informed about the charge/s, he is put under.
4. There should also be a right for review that must be available

Para 14 of the General Comment 35 further stresses that article has recognized that it may be required to arrest the individual but this has to be accompanied by enough provisions to ensure law and procedure against arbitrary detention. Below is provided the extract of the General Comment for ready reference:

“The Covenant does not provide an enumeration of the permissible reasons for depriving a person of liberty. Article 9 expressly recognizes that individuals may be detained on criminal charges, and article 11 expressly prohibits imprisonment on ground of inability to fulfil a contractual obligation. Other regimes involving deprivation of liberty must also be established by law and must be accompanied by procedures that prevent arbitrary detention. The grounds and procedures prescribed by law must not be destructive of the right to liberty of person. The regime must not amount to an evasion of the limits on the criminal justice system by providing the equivalent of criminal punishment without the applicable protections. Although conditions of detention are addressed primarily by articles 7 and 10, detention may be arbitrary if the manner in which the detainees are treated does not relate to the purpose for which they are ostensibly being detained. The imposition of a draconian penalty of imprisonment for contempt of court without adequate explanation and without independent procedural safeguards is arbitrary.”

The covenant also ensures right against undue interference with privacy, right to freedom of thought, conscience, expression, to enjoy cultures (especially in states where ethnic, linguistic minorities prevail), right to peaceful assembly to facilitate free existence of the democratic society. Although ICCPR deals with ‘civil and political rights’ but through the guarantee of few ‘civil and political rights’ there comes inherent economic, social and cultural right. The book by Moeckli, Shah, Sivakumaran, International Human Rights law, provides with such a list which is hereinafter referred to:-

Civil and Political Rights	Economic, social and cultural rights
Right to life	Right to health, food, water
Freedom from torture	Right to housing/health
Right to property	Right to housing, social security
Protection of the child	Right to food, education, etc.”

There are specific provisions to facilitate laws relating to marriage. It recognizes the importance of determination of rights and responsibilities of spouses at the stage of marriage and dissolution.

The covenant also stresses on right for the children. It covers wide range from protection of children at the time of dissolution to its non-discriminatory treatment and acquiring of a nationality.

Conclusion:

As we learnt in this module, the International Covenant on Civil and Political Rights consists of not civil and political rights but also brings in its guard few basic economic and social rights. The covenant requires its party states to comply with the duties mentioned in the covenant. It not just prevents citizens of these states from the violations led by the state on them but also within the confines of their private life eg marriage, the covenant seeks to protect. Special attention has been given to unlawful detention of people and their rights involved. Overall this covenant is extremely essential and does justice to the protection of human rights of citizens. The general comments provided by the Human Right Committee (extracts has been provided above) further clarify the covenant and provides detailed interpretation and wide ambit to the content thereby providing efficiency to its effect and applicability.

Reference

• YSR Murthy, Human Rights Handbook, Lexis Nexis, 2007.
• Bayefsky, The Principle of equality or non-discrimination in International Law (1990) 11 HRLJ .
• Lerner, Group Rights and discrimination in International Law (Martinus Nijhoff, 2003)
• Vandenhole, Non Discrimination and equality in the view of the UN Human Rights Treaty Bodies (Intersentia, 2005)
• Ginbar, Why not torture terrorists? Moral, practical, and legal aspects of the ‘Ticking bomb’ justification for Torture (Oxford University Press, 2008)
• Ingelse, The UN Human Rights Committee against Torture: An Assessment (Kluwer Academic Publishers, 2001)
• Moeckli, Shah, Sivakumaran, International Human Rights law (Oxford University Press, 2010).
• http://www.mpil.de/files/pdf1/mpunyb_seibert_fohr_5.pdf