2. International Covenant on Civil and Political Rights

PRELIMINARIES

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

PRELIMINARIES

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)

Overview

The ICCPR is an international covenant and is binding on the respective state parties. It embodies the first generation of human rights, although it lists more rights than the UDHR.

Overview

The ICCPR is an international covenant and is binding on the respective state parties. It embodies the first generation of human rights, although it lists more rights than the UDHR.

Rights Guaranteed

• Right of the peoples to self-determination [art. 1(1)]
• Right to an effective remedy [art. 2(3)(a)]
• Equal rights of men and women in the enjoyment of civil and political rights (art. 3); nondiscrimination in the enjoyment of Covenant rights [art. 2(1)]; equality before the law and equal protection (art. 26)
• Right to life [art. 6(1)]
• Freedom from torture or cruel, inhuman or degrading treatment or punishment (art. 7)
• Freedom from slavery and servitude [arts. 8(1)-(2)]
• Right to liberty and security of person [art. 9(1)]
• Right to be treated with humanity in cases of deprivation of liberty [art. 10(1)]
• Freedom from imprisonment for failure to fulfill a contractual obligation (art. 11)
• Freedom of movement and the right to travel [art. 12(1)]
• Right to a fair, impartial and public trial [art. 14(1)]
• Freedom from ex post facto laws [art. 15(1)]
• Right of recognition everywhere as a person before the law (art. 16)
• Right to privacy [art. 17(1)]
• Freedom of thought, conscience, and religion [art. 18(1)]
• Freedom of expression [art. 19(2)]
• Freedom of peaceful assembly (art. 21)
• Freedom of association [art. 22(1)]
• Right to marry and found a family [art. 23(2)]
• Right of every child to appropriate measures of protection, registration and a name, and to acquire a nationality [art. 24(1)–(3)]
• Right to participation, suffrage, and access to public service (art. 25)
• Right to equal protection before the law (art. 26)
• Right of minorities to enjoy their own culture, to profess and practice their religion and to use their own language (art. 27).

Nature of the Obligations under ICCPR

The legal obligation under article 2, paragraph 1, is both negative and positive in nature.

States Parties must refrain from violation of the rights recognized by the Covenant, and any restrictions on any of those rights must be permissible under the relevant provisions of the Covenant.

Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.

In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right. [General Comment No. 31, ¶6]

States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party. [General Comment No. 31, ¶10]

Rights Guaranteed

• Right of the peoples to self-determination [art. 1(1)]
• Right to an effective remedy [art. 2(3)(a)]
• Equal rights of men and women in the enjoyment of civil and political rights (art. 3); nondiscrimination in the enjoyment of Covenant rights [art. 2(1)]; equality before the law and equal protection (art. 26)
• Right to life [art. 6(1)]
• Freedom from torture or cruel, inhuman or degrading treatment or punishment (art. 7)
• Freedom from slavery and servitude [arts. 8(1)-(2)]
• Right to liberty and security of person [art. 9(1)]
• Right to be treated with humanity in cases of deprivation of liberty [art. 10(1)]
• Freedom from imprisonment for failure to fulfill a contractual obligation (art. 11)
• Freedom of movement and the right to travel [art. 12(1)]
• Right to a fair, impartial and public trial [art. 14(1)]
• Freedom from ex post facto laws [art. 15(1)]
• Right of recognition everywhere as a person before the law (art. 16)
• Right to privacy [art. 17(1)]
• Freedom of thought, conscience, and religion [art. 18(1)]
• Freedom of expression [art. 19(2)]
• Freedom of peaceful assembly (art. 21)
• Freedom of association [art. 22(1)]
• Right to marry and found a family [art. 23(2)]
• Right of every child to appropriate measures of protection, registration and a name, and to acquire a nationality (art. 24)
• Right to participation, suffrage, and access to public service (art. 25)
• Right to equal protection before the law (art. 26)
• Right of minorities to enjoy their own culture, to profess and practice their religion and to use their own language (art. 27).

Obligations of State Parties under the ICCPR (art.2)

• State parties undertake to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights enumerated therein, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, birth or other status.
• State parties are required to take the necessary steps to adopt legislative or other measures that are necessary to give effect to the rights recognized in the ICCPR.
• State parties must ensure that any person whose rights or freedoms are violated have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.
• State parties must ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authority, and that they shall enforce the remedy when granted.

Obligations of State Parties under the ICCPR (art.2)

• State parties undertake to respect and to ensure to all individuals within their territory and subject to their jurisdiction the rights enumerated therein, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, birth or other status.
• State parties are required to take the necessary steps to adopt legislative or other measures that are necessary to give effect to the rights recognized in the ICCPR.
• State parties must ensure that any person whose rights or freedoms are violated have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.
• State parties must ensure that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authority, and that they shall enforce the remedy when granted.

Non-Derogable Rights

Article 4 of the ICCPR provides that even in times of public emergency that threatens the life of the nation, no derogation may be made from the following rights:

• Right to life [art. 6);
• Prohibition of torture, cruel, inhuman and degrading treatment (art. 7);
• Prohibition of medical or scientific experimentation without consent (art. 7);
• Prohibition of slavery, slave trade and servitude (art. 8);
• Prohibition of imprisonment because of inability to fulfill contractual obligation (art. 11);
• Principle of legality in criminal law i.e. the requirement that criminal liability and punishment is limited to clear and precise provisions in the law, that was in force at the time the act or omission took place, except in cases where a later law imposes a lighter penalty (art. 15);
• Recognition everywhere as a person before the law (art. 16);
• Freedom of thought, conscience and religion (art. 18)

Non-Derogable Rights

Article 4 of the ICCPR provides that even in times of public emergency that threatens the life of the nation, no derogation may be made from the following rights:

• Right to life [art. 6);
• Prohibition of torture, cruel, inhuman and degrading treatment (art. 7);
• Prohibition of medical or scientific experimentation without consent (art. 7);
• Prohibition of slavery, slave trade and servitude (art. 8);
• Prohibition of imprisonment because of inability to fulfill contractual obligation (art. 11);
• Principle of legality in criminal law i.e. the requirement that criminal liability and punishment is limited to clear and precise provisions in the law, that was in force at the time the act or omission took place, except in cases where a later law imposes a lighter penalty (art. 15);
• Recognition everywhere as a person before the law (art. 16);
• Freedom of thought, conscience and religion (art. 18)

Lawful Derogation Under ICCPR

Before a State moves to invoke article 4 (and temporarily derogates from its obligations), two fundamental conditions must be met:

• the situation must amount to a public emergency which threatens the life of the nation, and
• the State party must have officially proclaimed a state of emergency. (General Comment No. 29, ¶2)

Lawful Derogation Under ICCPR

Before a State moves to invoke article 4 (and temporarily derogates from its obligations), two fundamental conditions must be met:

• the situation must amount to a public emergency which threatens the life of the nation, and
• the State party must have officially proclaimed a state of emergency. (General Comment No. 29, ¶2)

Permissible Derogations

• During an officially proclaimed public emergency threatening the life of the nation; and
• Measures must be strictly required by the exigencies of the situation, consistent with the State’s other obligations under international law, and free from discrimination solely on the grounds of race, colour, sex, language, religion or social origin (ICCPR, Art. 4(1)).
• The State must comply with the notification requirements of ICCPR, Art. 4(3).

Permissible Derogations

• During an officially proclaimed public emergency threatening the life of the nation; and
• subject to compliance with conditions under Article 4(1) and (3) of the ICCPR:
• Measures must be strictly required by the exigencies of the situation.
• Measures must be consistent with the State’s other obligations under international law.
• Measures must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
• The State must comply with Article 4(3)’s notification requirements.

Right to Life

The right to life is a right that should not be interpreted narrowly. It concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity. Article 6 of the Covenant guarantees this right for all human beings, without distinction of any kind, including for persons suspected or convicted of even the most serious crimes. (General Comment No. 36, ¶3)

Right to Life

The right to life is a right that should not be interpreted narrowly. It concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity. Article 6 of the Covenant guarantees this right for all human beings, without distinction of any kind, including for persons suspected or convicted of even the most serious crimes. (General Comment No. 36, ¶3)