The Truth about role of ICCPR in protecting global Human Rights

Introduction

The International Covenant on Civil and Political Rights (ICCPR) is a fundamental international human rights instrument that provides a wide range of civil and political rights safeguards. The ICCPR is part of the International Bill of Human Rights, which also includes the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights. The ICCPR requires countries that have ratified the treaty to protect and preserve basic human rights such as the right to life and human dignity, equality before the law, freedom of expression, assembly, and association, religious freedom, and privacy, freedom from torture, ill-treatment, and arbitrary detention, gender equality, the right to a fair trial, family life and family unity, and minority rights.

The Covenant mandates countries to adopt administrative, judicial, and legislative actions to preserve the rights of their citizens. The United Nations General Assembly approved the Covenant in 1966, and it went into effect in 1976. The Covenant has been ratified by 172 nations as of December 2018.

Article 3 ensures that men and women have equal access to all of the Covenant’s civil and political rights. The right to life, freedom from torture, liberty and security of person, rights of detainees, right to a fair trial, right to privacy, freedom of religion, freedom of expression, right to political participation, equality before the law, and protection of minorities are among the rights enshrined in the ICCPR. Furthermore, if any of the ICCPR’s recognized rights or freedoms are violated, a person shall have access to an appropriate remedy.

When the Covenants were being drafted, the General Assembly decided to split the rights enumerated in the Declaration into two legal instruments: I the International Covenant on Civil and Political Rights (ICCPR), which encompasses the traditional civil and political rights recognised in Western societies and cultures; and (ii) the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which addresses the aspirations of socialist and third-world countries.

Human rights do not exist in an absolute or limitless sense. In some cases, their freedom of movement may be restricted. Both Covenants acknowledge that justifiable restrictions on the exercise of human rights may be imposed. Six articles of the ICCPR, notably Articles 12, 14, 18, 19, 21, and 22, expressly indicate that these rights must be exercised within the limits imposed by law and essential to maintain public order.

The emphasis of this research will be on the ICCPR’s role in safeguarding international human rights. The aim of the analysis will be on the impact of the ICCPR in safeguarding rights in various nations. The research will be doctrinal in nature and will be based on existing literature.

Need for an international body for protection of rights

The Universal Declaration of Human Rights, which was approved in 1948, was primarily persuasive in character and lacked any enforceable powers, the ICCPR was a pioneer in the field of Human Rights enforcement. As a result, the ICCPR was written with the intention of having legal force, in the sense that nations who sign and ratify the treaty are obligated to follow its provisions and would be held accountable for violations of those rights.

Many of the nations that signed the ICCPR also agreed that the Human Rights Committee may investigate claims that the government had infringed people’s rights. The ICCPR established a Human Rights Committee, which consists of eighteen members and is responsible for carrying out the following provisions of Article 28:

1. Reporting;
2. Individual communications- the committee can accept individual communications from any person who is subject to the authority of a State that has signed the first optional Protocol. The individual who asserts that his rights have been violated, or anybody acting on his behalf, must make the notification. The conversation can’t be kept private. The individual must demonstrate that all domestic remedies have been exhausted, and the case must not be pending before any other international authority.
3. The committee also has the authority to make general observations on the interpretation and application of several Articles. The committee was given this jurisdiction under Article 40.
4. One State Party may propose to the committee, pursuant to Article 41 of the ICCPR, that another State Party is not complying with the covenant’s duties. This clause only applies if the committee’s competence in this area has been acknowledged by both nations.

The Human Rights Committee meets three times a year at the United Nations Office in Geneva, Switzerland, for three-week sessions. Every four years, countries that have ratified the ICCPR must report to the Committee. Each session, which is open to the public and frequently live-streamed, invites three to five countries to deliver their reports. In the form of “concluding observations,” the Committee reviews the report and expresses its concerns and recommendations to the government. The Committee also publishes general remarks, which are its interpretations of the human rights provisions of the treaty.

On December 15, 1989, a second protocol to the ICCPR, known as the Second Optional Protocol to the International Covenant on Civil and Political Rights, was accepted, with the goal of abolishing the death penalty, and it went into effect on July 11, 1991. The Special Rapporteur of the Commission on Human Rights, now the Human Rights Council, on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, deals exclusively with the right to health for everyone, regardless of whether or not a State is a party to a human rights treaty incorporating the right to health.[1]

After considering a State Party’s report, the Committee may, among other things, highlight a State Party’s shortcomings in relation to implementing rights that are either directly or indirectly linked to the right to health in its concluding observations, and may suggest how the State Party should go about correcting these shortcomings. In terms of general comments, the Committee has stated, for example, in its general comment on gender equality, when referring to the protection of children, that the protection of children should be applied equally to boys and girls.[2]

States are progressively using international organizations to create and implement international legal regimes, to the point that there is almost no national policy area that is not covered by rules adopted through IOs. Exploring legal alternatives to bind IOs to observe the UN Covenants is therefore critical, as this legal gap not only undermines the UN human rights system’s effectiveness but also IOs’ acceptance as a platform for inter-state collaboration.

Therefore, for ensuring that there is no violation of Human rights at the global level there is a need for an international body like ICCPR to safeguard the rights of the people across the globe.

Jurisdiction of ICCPR

Article 2(1) of ICCPR provides that each State Party to the present Covenant undertakes to respect and ensure the rights recognized in the present Covenant to all individuals within its territory and subject to its jurisdiction, regardless of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Further, the application of the ICCPR is not only in the territory of the state. It also has an extraterritorial application. The ICCPR’s “extraterritorial” applicability refers to interferences with or violations of protected rights that occur outside of a state’s territory and affect enjoyment of the right outside of that state’s territory.

State Parties must take necessary actions to enact such legislation or other measures as may be necessary to give effect to the rights established in the present Covenant, according to Article 2(2) of the ICCPR. Because in international law, a signature does not normally bind a State, countries that have ratified the ICCPR must take actions in their respective jurisdictions to recognize the adoption of this international covenant. Future ratification, acceptance, approval, or accession is typically required.

According to Amnesty International’s interpretation of the ICCPR, a state is responsible for any violation of the ICCPR if the conduct complained of occurs within the territory or jurisdiction of that state or has the effect of interfering with the enjoyment of the right within that state, even if the persons affected reside elsewhere. The state’s obligation in such cases should not be seen as an “extraterritorial” application of the ICCPR because the interference occurs inside the state’s territorial authority.[3]

The Human Rights Committee has long supported a stance supporting nations’ duty to apply ICCPR rights outside their own borders, as well as stressing that Article 2(1) of the Covenant should be interpreted in a disjunctive manner. The Committee’s position on this is best summed up in López Burgos v. Uruguay[4]:

“…it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a state party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”

Similarly, the International Court of Justice has affirmed states’ obligations to apply the ICCPR when exercising their authority outside of their own borders. The ICJ followed the HRC’s jurisprudence and reasoning in its advisory opinion, Legal Consequences of the Construction of a Wall in the Occupied Territories, in confirming Israel’s obligation to fulfill its Covenant obligations in the Occupied Territories, rejecting Israel’s claim that it did not exercise effective control in those areas.[5]

The European Court of Human Rights (ECtHR) has ruled in favor of state parties to the European Convention on Human Rights and Fundamental Freedoms respecting and ensuring rights under the Convention extraterritorially, despite the fact that it is considering the application of a different legal instrument. The European Court of Human Rights has ruled that states can be held liable for extraterritorial violations of the Convention in specific circumstances.[6]

The European Court of Human Rights has concluded that the European Convention applies in cases where the state has “effective control” over a particular territory or individual. Thus, even if the acts occur entirely within the territory of another state, the first state’s international human rights responsibilities may still be violated if it can be demonstrated that the individual was under the state’s power or effective control.[7]

As such, the Inter-American Commission on Human Rights has granted decisions in a number of cases involving extraterritorial applicability of the American Convention on Human Rights. The International Court of Justice has regularly held that a state’s duties under the relevant Convention extend beyond its national territory. The IACHR broadened the definition of the jurisdiction in Salado v. Argentina, stating that “this term is not, as submitted by the respondent Government, equivalent to or limited to the national territory of the High Contracting Party involved.”[8]

Rights safeguarded under ICCPR

There are various rights protected under the ICCPR, and each right is administered for a specific reason. The researcher will examine the reasons for each right offered under the ICCPR:

1. Article 6 of the ICCPR guarantees the inherent right to life for all humans, protected by law. No one should be arbitrarily deprived of life. The provision addresses prejudice and arbitrary decisions by states that disregard life and liberty. It also safeguards against misuse of the death penalty, allowing it only for the most serious crimes according to the applicable law and after due process by a competent court.
2. Article 6 of the ICCPR provides that every human being has inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. Because there is so much prejudice in the many states, this right is provided. Many states make decisions based on their whims and fancies, ignoring the person’s life and liberty. It is essential to take away rights in a reasonable manner if a state is taking them. Not only this, this article provides protection against the countries which have not abolished the death penalty, the article provides that the death penalty can be given only in most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provision. Also, the penalty can only be provided after the judgment of a competent court.
3. Article 7 of the ICCPR prohibits torture, cruel, or degrading treatment or punishment. It was added due to widespread reports of torture in numerous countries. From 1997 to 2001, Amnesty International documented such acts in over 150 nations, affecting political prisoners in 70 and other detainees in over 130 countries. Torture’s purpose, according to survivors, is to break the victim’s identity rather than gather information. Additionally, the provision forbids conducting scientific experiments on humans. This was included in response to the horrific human experimentation during World War II in Nazi concentration camps, where prisoners, including children, suffered immensely without their consent, resulting in death or life-altering consequences.
4. Article 8 provides that slavery should be abolished and the slave trade in all its forms shall be prohibited. The reason for adding this provision is slavery is a worldwide problem and almost every country was facing the problem of slavery. Slavery has been documented in many, if not all, cultures before written records were created; the practice has existed in many, if not all, cultures. To be viable, mass slavery requires economic surpluses and a large population density. As a result, slavery would have only been widespread during the Neolithic Revolution, some 11,000 years ago, when agriculture was invented.
5. Article 9 provides that everyone has the right to liberty and security of person and no one shall be subjected to arbitrary arrest or detention. No one shall be deprived except in accordance with such procedures as are established by law. The addition of this provision in the covenant is clear, many countries were arresting its citizen without due process, and there are basic rights that are also curbed out due to this illegal arrest. Therefore, it is the need of the hour to stop those illegal arrests in order for the people to enjoy their other rights effectively.
6. Article 10 provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. The reason for addition is self-understandable as no right can exist in a vacuum. Each and every right is connected with each other, some rights are provided just to support the instance and to supplement another right.
7. The ICCPR’s Articles 14 and 15 guarantees the right to a fair trial. Basic rules, minimum guarantees, and other provisions are the three sections of the 16 concrete guarantees of fair trial rights. Because article 14, paragraph 1 establishes a specific form of right—the general right to a fair trial—a proceeding that complies with those concrete guarantees may not necessarily comply with the need of fair trial rights. Unlike the explicit assurances, the universal right to a fair trial necessitates a holistic assessment of the processes. The Human Rights Committee has added more and more concrete protections to fair trial rights via the general right to a fair trial as it interprets the ICCPR.[9]
8. The right to privacy is guaranteed by Article 17 of the ICCPR. It guarantees the privacy of consensual sexual activity, effectively eliminating limitations on homosexual behavior. This also safeguards people from unjustified attacks on their honor and reputation. Article 18 – Mandates freedom of religion and belief. Toonen’s rights under Article 17 were found to be violated by relevant elements of Tasmania’s Criminal Code. This aspect of the decision follows the European Court of Human Rights’ decisions in Dudgeon v UK[10], Norris v Ireland[11], and Modinos v Cyprus[12], in which similar laws prohibiting all consensual sex between adult males were found to violate the European Convention of Human Rights’ corresponding right to privacy, Article 8, in those cases (ECHR).
9. Article 19 of ICCPR mandates Freedom of expression as it is important to express to live freely. Human beings are social animals and in order to maintain social relationships, humans have to express themselves. It is very important to safeguard this right, most countries try to diminish this right by applying several unreasonable restrictions. Therefore, the protection of rights is a necessary aspect of an international organization such as ICCPR.
10. Article 21 of the ICCPR guarantees the right to peaceful assembly, with no restrictions other than those necessary to maintain the integrity and peace of a democratic society. Article 22 states that everyone has the freedom to create associations, but it also has the same limits as the preceding article. It further states that members of the International Labour Organization must not have or enact any legislation that restricts people’s freedoms as guaranteed by the Convention.
11. Article 23 of the ICCPR provides that, both men and women have the right to marry, and this cannot be done without both parties’ permission. Each State must also take reasonable efforts to guarantee that the parties have equal rights and obligations during and after the dissolution.
12. Article 26 of the ICCPR provides that, every person is equal before the law and must be treated equally without discrimination; the state must also ensure equality to its inhabitants on the basis of religion, race, caste, sex, nationality, and socioeconomic background, among other things.

In 1977, an 18-member Human Rights Committee (HRC) was established under Article 28 of the ICCPR to oversee the implementation of its provisions. Its members are known for their strong moral character and expertise in the field of human rights. States Parties to the Covenant elect them from among their own citizens. They are elected for a four-year term and serve in their respective capacities.

The HRC’s responsibilities include reviewing reports on the measures taken by States Parties to give effect to the rights recognized in the Covenant, as well as progress made in the exercise of those rights. It sends its reports to the States Parties, along with any general comments. It fulfills specific responsibilities with the goal of resolving inter-state disputes over the Covenant’s application. The Committee’s role in this area is restricted because the interstate complaints system is optional. This function is contingent on contesting governments accepting the HRC’s competence to investigate human rights violations in their countries.

ICCPR in Indian Context

The National Human Rights Commission is the authority in India that governs and safeguards human rights (NHRC). Any state must ratify a treaty in order for it to become legally binding, and during this period, any government can make declarations. In this context, India has issued a number of declarations about the ICCPR. While ratifying the Treaty, the government declared that Article 9 of the Treaty operates in tandem with Article 22 of the Indian Constitution, which establishes preventative and punitive detention measures.

In this regard, the government has said that under Indian legal systems, there is no enforceable entitlement to compensation for victims of wrongful arrest. The Indian government maintains the right to enforce its own domestic laws in response to Article 13 of the ICCPR, which forbids the removal of resident immigrants. India, too, has adhered to the ICCPR’s principles, establishing the National Human Rights Commission in 1993 under the Protection of Human Rights Act. The NHRC has broad powers, and any human rights infraction can be reported to the Commission directly. The Commission has the authority to make recommendations to courts in human rights cases and to take suo moto action in certain instances.

There are many instances in which NHRC have implemented the provision of ICCPR and protected the Human Rights in India. One of the main responsibilities of the NHRC is to avoid violations of international conventions to which India is a signatory. Gujurat Roits is one of the cases where Human Rights are being protected. The NHRC has taken notice of media reports concerning the discovery of a mass grave in Lunawada hamlet in Gujarat’s Panchamahal District.

The panel requested a report on the subject from the State Government and the CBI. During the months of February and March 2002, communal violence on a large scale was reported in Gujarat. Approximately 3,000 members of the minority Muslim community were killed, and property was destroyed. The Gujarat state government and police failed to take enough precautions to avoid violence and to give protection, security, and justice to Muslim minority community victims.

Similarly, there are other cases where NHRC has complied with the international conventions and protected the rights guaranteed under ICCPR.

The majority of the rights granted by the ICCPR are enshrined in the Indian Constitution. Such as Article 14 of the Constitution[13] provides that State will treat every person equally. Article 15[14] provides that no person shall be discriminated on the basis of caste, sex, gender, race, etc. Article 19 guarantees freedom of speech and expression, freedom of association, freedom to reside and settle in India, freedom of occupation. Article 21 provides the Right to life and personal liberty, article 22 provides prisoners rights. Article 25 provides freedom of religion, article 26-30 gives rights to minorities.

Remedies under ICCPR for violation of rights

Article 2(3) of the ICCPR provides the remedy, the Convention obligates its signatory to undertake:

1. That it will ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy. Notwithstanding that the violation has been committed by persons acting in an official capacity.
2. To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy.
3. To ensure that the competent authorities shall enforce such remedies when granted.

Along with this, Human Rights committee is setup under ICCPR, The Human Rights Committee is comprised of 18 independent experts who are elected by States Parties to the ICCPR for a four-year term. Each member must be a national of a State Party to the International Covenant on Civil and Political Rights (ICCPR), be of good moral character, and have demonstrated expertise in the field of international human rights. The Committee can only have one representative from each country. One year after the ICCPR’s entry into force, each State Party must submit a report to the Human Rights Committee detailing the status of its implementation of the ICCPR’s provisions.

Following the initial report, when the Bureau of the Human Rights Committee asks it, a State will submit periodic reports. The State’s submission of a report addressing progress made since the previous reporting cycle has traditionally been the first step in the Human Rights Committee’s review of periodic State reports, after which the Committee would adopt a list of issues to identify the topics it most wanted to discuss during a constructive dialogue with the State. The Committee would next produce its concluding views based on the reports and responses to the list of concerns presented by the State and civil society.

The Human Rights Committee has developed a “list of issues prior to reporting” mechanism that simplifies the reporting process. The Committee creates a list of issues to which the State answers as the first stage in this procedure.[15]

The Committee has also decided to restrict the number of questions in each list of topics to 25, and has adopted a predictable review cycle based on an eight-year cycle of review, with a five-year review procedure and a three-year gap between reviews.

Individual complaints alleging a breach of an individual’s rights under the ICCPR may be considered by the Human Rights Committee if the State is a party to the First Optional Protocol to the ICCPR, which provides the complaints system. The conditions for the Committee’s examination of an individual complaint are outlined in Articles 1 through 5 of the Optional Protocol.

The Optional Protocol has 116 signatories as of September 2021. The model complaint form can be used to provide: (1) basic information, (2) the State party to whom the complaint is directed and the ICCPR rights that have been alleged to be violated, (3) steps taken to exhaust domestic remedies, (4) a chronological list of facts on which the complaint is based, and (5) a checklist of supporting documents, including copies of complaints or decisions before domestic courts.

Conclusion

ICCPR safeguards the vast majority of civil and political rights, we can assert that it has a significant impact on international human rights protection. The International Covenant on Civil and Political Rights (ICCPR) contains certain rights that signatory countries pledge to protect. The signatory country was required to create a remedial system. There is a human right committee which takes report every four years, the state must report on the situation of human rights of their country in Geneva, ensuring local government accountability.

Therefore, we can say that there is protection provided under the ICCPR. However, on the other hand, the fact that those rights have been respected does not yet guarantee that the trial must be fair. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. It becomes very difficult for the international authority to look at the ground action of any work because monitoring a country at a fundamental level is something that is not possible as each state is sovereign. Therefore, state duty is the most important aspect for the success of ICCPR in any country.

Read similar topics by clicking here.

---

[1] The United Nations Commission on Human Rights has been replaced by the United Nations Human Rights Council as per United Nations General Assembly resolution A/RES/60/251 adopted on 15 March 2006. The Commission on Human Rights ceased to exist on 16 June 2006, see press release at: http://www.un.org/News/Press/docs/2006/ecosoc6192.doc.htm

[2] General Comment 28, Equality of rights between and women, UN Doc. CCPR/C/21/Rev.1/Add.10, 29 March 2000, para. 28.

[3] Munaf v Romania (2009) UN Doc CCPR/C/96/D/1539/2006 (HRC).

[4] López Burgos v. Uruguay, UN Doc. A/36/40, 6 June 1979, para. 12.3.

[5] International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, General List, No.131 paras. 109-111. Armed Activities in the territory of the Congo (Democratic Republic of Congo v Uganda) [2005] ICJ Rep 168, para. 220.

[6] Catan v Moldova and Russia Applications nos. 43370/04, 8252/05 and 18454/06.

[7] Al-Skeini and Others v the United Kingdom, Application no. 55721/07.

[8] Victor Saldaño v. Argentina, Petition, IACHR Report No. 38/99, 11 March 1999, para. 18.

[9] Jixi Zhang, Fair Trial Rights in ICCPR, 2 J. POL. & L. 39 (2009).

[10] Dudgeon v UK, (1981) 4 EHRR 149. 

[11] Norris v. Ireland, (1988) 13 EHRR 186.

[12] Modinos v. Cyprus, (1993) 16 EHRR 485.

[13] Constitution of India, 1950, Art. 14.

[14] Constitution of India, 1950, Art. 15.

[15]Guidelines for the Treaty-Specific Document to be Submitted by States Parties under Article 40 of the ICCPR, CCPR/C/2009/1, 20 November 2010, paras. 14-15.