International Covenant on Civil and Political Rights


International Covenant on Civil and Political Rights

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The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. Nations that have signed this treaty are bound by it.

The International Covenant on Civil and Political Rights is monitored by the Human Rights Committee (a separate body to the Human Rights Council which replaced the Commission on Human Rights under the UN Charter in 2006) with permanent standing, to consider periodic reports submitted by member States on their compliance with the treaty. Members of the Human Rights Committee are elected by member states, but do not represent any State. The Covenant contains two Optional Protocols. The first optional protocol creates an individual complaints mechanism whereby individuals in member States can submit complaints, known as communications, to be reviewed by the Human Rights Committee.Its rulings under the first optional protocol have created the most complex jurisprudence in the UN international human rights law system.

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 [ [http://www.unhchr.ch/html/menu3/b/a_opt2.htm Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty] , Article 2.1] .

Genesis

The ICESCR and the ICCPR have their roots in the same process that led to the Universal Declaration of Human Rights. As the UDHR was not expected to impose binding obligations, the United Nations Commission on Human Rights began drafting a pair of binding Covenants on human rights intended to impose concrete obligations on their parties [Paul Sieghart, "The International Law of Human Rights", Oxford University Press, 1983, pp 25 - 26.] . Due to disagreements between member states on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights, two separate Covenants were created. These were presented to the UN General Assembly in 1954, and adopted in 1976.

Convention provisions

Five categories
# Protection on individual's physical integrity (against things such as execution, torture, and arbitrary arrest).
# Procedural fairness in law (rule of law, rights upon arrest, trial, basic conditions must be met when imprisoned, rights to a lawyer, impartial process in trial).
# Protection based on gender, religious, racial or other forms of discrimination.
# Individual freedom of belief, speech, association, freedom of press, right to hold assembly.
# Right to political participation (organise a political party, vote, voice contempt for current political authority).

Two optional protocols
# Mechanism by which individuals can launch complaints against member states.
# Abolition of the death penalty.

National implementation and effects

The International Covenant on Civil and Political Rights currently has 162 States Parties and a further 8 signatories (pending ratification).A country-by-country list of declarations and reservations made upon ratification, accession or succession can be seen at http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm.

New Zealand

New Zealand's Parliament implemented the ICCPR in domestic law by passing the New Zealand Bill of Rights Act in 1990.

United States

Reservations

The United States long resisted ratification. This was motivated by popular American dislike for the UN, but also out of a fear that the covenant's anti-death-penalty language could be used by domestic anti-death-penalty activists to litigate against capital punishment. The United States Senate ratified the ICCPR in 1992, with a number of reservations, understandings, and declarations; with so many, in fact, that its implementation has little domestic effect. [Citation | url=http://www.nps.gov/archive/elro/glossary/cov-civilpol-rights.htm | title=Covenant on Civil and Political Rights | publisher=Elanor Roosevelt National Historical Site | year=2003 | location=Hyde Park, New York | accessdate=2008-05-06] In particular, the Senate declared in 138 Cong. Rec. S4781-84 (1992) that "the provisions of Article 1 through 27 of the Covenant are not self-executing", and in S. Exec. Rep., No. 102-23 (1992) 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 is created by ratification. "Sei Fujii v. State" 38 Cal.2d 718, 242 P.2d 617 (1952); also see "Buell v. Mitchell" [http://bulk.resource.org/courts.gov/c/F3/274/274.F3d.337.99-4271.html 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.

International law

Prominent critics in the human rights community, such as Prof. Louis Henkin [Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346 (1995)] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. [http://www.law.uh.edu/faculty/main.asp?PID=34 Jordan Paust] [Jordan J. Paust, International Law As Law Of the United States 375 (2d ed. 2003)] ("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:

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. [ [http://www1.umn.edu/humanrts/gencomm/hrcom24.htm Hum. Rts. Comm. General Comment No. 24] (52), para. 11, 18-19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994)]

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," [http://bulk.resource.org/courts.gov/c/F3/287/287.F3d.1224.01-5014.html 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 [http://www2.ohchr.org/english/bodies/ratification/5.htm 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:

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 … (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 … (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. [Concluding Observations of the Human Rights Comm.: United States of America, U.N. Doc. No. CCPR/C/USA/CO/3/Rev.1, para. 10 (2006)]
(available at )

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. At any rate, the United States is but a signatory in name only.

tates not member of the Covenant

The majority of states in the world are states parties to the ICCPR. The following 30 states are not states parties as of July 2008 (some of these states, 8 in bold, have signed the Covenant):

References and notes

External links

* [http://www2.ohchr.org/english/law/ccpr.htm Full text of the Covenant]
* [http://www2.ohchr.org/english/bodies/ratification/4.htm Member States date of ratification, accession and succession along with statements or declarations made by member states (if any)]
* [http://www.bayefsky.com The United Nations Human Rights Treaties: accessible collection of documents]
* [http://www.geocities.com/mhc_humanrights/USICCPRarticle.html US Ratification of the ICCPR and its Domestic Implications by William A. Courson]
* [http://www.article2.org article 2] Bimonthly publication highlighting article 2 of the ICCPR


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