French, English, Russian, Chinese and Spanish (authentic texts pursuant to Article 53 of the Covenant),[2] as well as Arabic (official text adopted by the UN General Assembly)[3]
Compliance with the ICCPR is monitored by theUnited Nations Human Rights Committee,[B] which reviews regular reports of states parties on how the rights are being implemented. States must report one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets at theUN Office at Geneva, Switzerland and typically holds three sessions per year.
International Covenant on Civil and Political Rights
The ICCPR (International Covenant On Civil and Political Rights) has its roots in the same process that led to theUniversal Declaration of Human Rights.[6] A "Declaration on the Essential Rights of Man" had been proposed at the1945 San Francisco Conference which led to the founding of the United Nations, and theEconomic and Social Council was given the task of drafting it.[5] Early on in the process, the document was split into a declaration setting forth general principles of human rights, and a convention or covenant containing binding commitments. The former evolved into the UDHR and was adopted on 10 December 1948.[5]
Drafting continued on the convention, but there remained significant differences between UN members on the relative importance ofnegative Civil and Political versuspositive Economic, Social and Cultural Rights.[7] These eventually caused the convention to be split into two separate covenants, "one to contain civil and political rights and the other to contain economic, social and cultural rights".[8] The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously.[8] Each would also contain an article on the right of all peoples to self-determination.[9]
The first document became the International Covenant on Civil and Political Rights and the second theInternational Covenant on Economic, Social and Cultural Rights. The drafts were presented to the UN General Assembly for discussion in 1954 and adopted in 1966.[10] As a result of diplomatic negotiations the International Covenant on Economic, Social and Cultural Rights was adopted shortly before the International Covenant on Civil and Political Rights.Together, the UDHR and the two Covenants are considered to be the foundational human rights texts in the contemporary international system of human rights.[6]
The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.[11]
Part 1 (Article 1) recognizes the right of all peoples toself-determination, including the right to "freely determine their political status",[12] pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises anegative right of a people not to be deprived of its means of subsistence,[13] and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.[14]
Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effectivelegal remedy for any violation of those rights.[15] It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status,"[16] and to ensure that they are enjoyed equally by women.[17] The rights can only be limited "in time ofpublic emergency which threatens the life of the nation,"[18] and even then no derogation is permitted from the rights to life, freedom fromtorture andslavery, the freedom fromretrospective law, the right topersonhood, andfreedom of thought,conscience,religion and freedom from medical or scientific experimentation without consent.[19]
Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:
physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8);
individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and theright to privacy (Articles 12, 13, 17 – 24);
prohibition by law of anypropaganda for war as well as any advocacy of national or religious hatred that constitutesincitement to discrimination, hostility or violence (Article 20);
political participation, including the right to theright to vote (Article 25);
Many of these rights include specific actions which must be undertaken to realize them.
Part 4 (Articles 28 – 45) governs the establishment and operation of theHuman Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognize the competence of the committee to resolve disputes between parties on the implementation of the Covenant (Articles 41 and 42).
Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".[20]
Part 6 (Articles 48–53) governs ratification, entry into force, and amendment of the Covenant.
Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law.[21] It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.[22] It therefore requires parties to take positive measures to reduceinfant mortality and increaselife expectancy, as well as forbidding arbitrary killings by security forces.[22]
While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes"[23] and forbids it to be used on children and pregnant women[24] or in a manner contrary to theConvention on the Prevention and Punishment of the Crime of Genocide.[25] The UN Human Rights Committee interprets the Article as "strongly suggest[ing] that abolition is desirable",[22] and regards any progress towards abolition of the death penalty as advancing this right.[22] TheSecond Optional Protocol commits its signatories to the abolition of the death penalty within their borders.
Article 7 prohibitstorture,cruel, inhuman or degrading punishment and non-consensual medical or scientific experimentation.[26] As with Article 6, it cannot be derogated from under any circumstances.[19] The article is now interpreted to impose similar obligations to those required by theUnited Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition onrefoulement.[27] In response toNazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.[26]
Article 8 prohibitsslavery and enforced servitude in all situations.[28] The article also prohibitsforced labour, with exceptions for criminal punishment, military service and civil obligations.[29]
Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law,[30] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[31] These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.[32]
Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge.[33] It also restricts the use of pre-trial detention,[34] requiring that it not be 'the general rule'.[32]
Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.[35] This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care.[36] The right complements the Article 7 prohibition on torture and cruel,inhuman or degrading treatment.[36] The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults.[37] It requires prisons to be focused on reform and rehabilitation rather than punishment.[38]
Article 11 prohibits the use of imprisonment as a punishment for breach of contract.[39]
Article 14 recognizes and protects a right to justice and a fair trial.Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place inopen court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[40] Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children.[40] These obligations apply to both criminal and civil hearings, and to all courts and tribunals.[41]Article 14.3 mandates that litigants must be informed promptly and in detail in a language which they understand.[40]
Article 15 prohibits prosecutions underex post facto law and the imposition ofretrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.[47] One exception is criminal proceedings held for violations ofperemptory norms (jus cogens) undercustomary international law,[48] such as genocide, slavery, torture, and wars of aggression.
Article 12 guaranteesfreedom of movement, including the right of persons to choose their residence, to leave and return to a country.[50] These rights apply to legal aliens as well as citizens of a state,[51] and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others.[52] The article also recognises a right of people to enter their own country: theright of return.[53] TheHuman Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality.[51] They also regard it as near-absolute; "there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable".[51]
Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.[54]
Article 17 mandates theright of privacy.[55] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,[56] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.[57]Article 17 also protects people against unlawful attacks to their honor and reputation. Article 17 (2) grants the protection of the law against such attacks.[55]
Article 2 and Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied upon in relation to another right protected by the ICCPR.
In contrast,Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependent upon another right under the convention being infringed. This has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR.
There are two Optional Protocols to the Covenant. TheFirst Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant.[67] This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of September 2019[update], the First Optional Protocol has 116 parties.[68]
TheSecond 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.[69] As of June 2022[update], the Second Optional Protocol had 90 parties.[68]
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A number of parties have made reservations and interpretative declarations to their application of the Covenant.[70]
Argentina will apply the fair trial rights guaranteed in itsconstitution to the prosecution of those accused of violating the general law of nations.[1]
Australia reserves the right to progressively implement the prison standards of Article 10, to compensate for miscarriages of justice by administrative means rather than through the courts, and interprets the prohibition on racial incitement as being subject to the freedoms of expression, association and assembly. It also declares that its implementation will be effected at each level of its federal system.[1]
Austria reserves the right to continue to exile members of theHouse of Habsburg, and limits the rights of the accused and the right to a fair trial to those already existing in its legal system.[1]
Bahamas, due to problems with implementation, reserves the right not to compensate for miscarriages of justice.[1]
Bahrain interprets Articles 3 (no sexual discrimination), 18 (freedom of religion) and 23 (family rights) within the context of Islamic Sharia law.[1]
Bangladesh reserves the right to try peoplein absentia where they are fugitives from justice and declares that resource constraints mean that it cannot necessarily segregate prisons or provide counsel for accused persons.[1]
Barbados reserves the right not to provide free counsel for accused persons due to resource constraints.[1]
Belgium interprets the freedoms of speech, assembly and association in a manner consistent with theEuropean Convention on Human Rights. It does not consider itself obliged to ban war propaganda as required by Article 20, and interprets that article in light of the freedom of expression in the UDHR.[1]
Belize reserves the right not to compensate for miscarriages of justice, due to problems with implementation, and does not plan to provide free legal counsel for the same reasons as above. It also refuses to ensure the right to free travel at any time, due to a law requiring those travelling abroad to provide tax clearance certificates.[1]
Denmark reserves the right to exclude the press and the public from trials as per its own laws. Reservation is further made to Article 20, paragraph 1. This reservation is in accordance with the vote cast by Denmark in the XVI General Assembly of the United Nations in 1961 when the Danish Delegation, referring to the preceding article concerning freedom of expression, voted against the prohibition against propaganda for war.[1]
The Gambia, as per its constitution, will provide free legal assistance for accused persons charged with capital offences only.[1]
Pakistan, has made several reservations to the articles in the convention; "the provisions of Articles 3, 6, 7, 18 and 19 shall be so applied to the extent that they are not repugnant to the Provisions of the Constitution of Pakistan and the Sharia laws", "the provisions of Article 12 shall be so applied as to be in conformity with the Provisions of the Constitution of Pakistan", "With respect to Article 13, the Government of the Islamic Republic of Pakistan reserves its right to apply its law relating to foreigners", "the provisions of Article 25 shall be so applied to the extent that they are not repugnant to the Provisions of the Constitution of Pakistan" and the Government of the Islamic Republic of Pakistan "does not recognize the competence of the Committee provided for in Article 40 of the Covenant".
TheUnited States has made reservations that none of the articles should restrict the right offree speech andassociation; that the US government may impose capital punishment on any person other than a pregnant woman, including persons below the age of 18; that "cruel, inhuman and degrading treatment or punishment" refers to those treatments or punishments prohibited by one or more of thefifth,eighth, andfourteenth amendments to the US Constitution; that the third clause of Paragraph 1, Article 15 will not apply; and that, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14, the US government may treat juveniles as adults, and accept volunteers to the military prior to the age of 18. The United States also submitted five "understandings", and four "declarations".[71]
The International Covenant on Civil and Political Rights has 167 states parties, 67 by signature and ratification, and the remainder by accession or succession. Another five states have signed but have yet to ratify the treaty.[1]
According to a 2013 study, the ICCPR has significantly improved human rights practices on matters where evidence-production costs and standards of proof are low, but has had a limited impact for issue areas where legally admissible evidence is costly to produce and standards of proof are high. This means that the ICCPR has "significantly improved governments' respect for the freedoms of speech, association, assembly, and religion" but has had insignificant effects on respect to personal integrity rights.[72]
The Covenant is not directly enforceable in Australia, but its provisions support a number of domestic laws, which confer enforceable rights on individuals. For example, Article 17 of the convention has been implemented by the AustralianPrivacy Act 1988. Likewise, the Covenant's equality and anti-discrimination provisions support the federalDisability Discrimination Act 1992. Finally, the Covenant is one of the major sources of 'human rights' listed in the Human Rights (Parliamentary Scrutiny) Act 2011.[73] This law requires most new legislation and administrative instruments (such as delegated/subordinate legislation) to be tabled in parliament with a statement outlining the proposed law's compatibility with the listed human rights[74] A Joint Committee on Human Rights scrutinises all new legislation and statements of compatibility.[75] The findings of the Joint Committee are not legally binding.
Legislation also establishes the Australian Human Rights Commission[76] which allows theAustralian Human Rights Commission (AHRC) to examine enacted legislation[77] (to suggest remedial enactments[78]), its administration[79] (to suggest avoidance of practices[80]) and general compliance[81] with the covenant which is scheduled to the AHRC legislation.[82]
In Victoria and the Australian Capital Territory, the convention can be used by a plaintiff or defendant who invokes those jurisdiction's human rights charters.[83] While the Convention cannot be used to overturn a Victorian or ACT law, a Court can issue a 'declaration of incompatibility' that requires the relevant Attorney-General to respond in Parliament within a set time period.[85] Courts in Victoria and the ACT are also directed by the legislation to interpret the law in a way to give effect to a human right,[84] and new legislation and subordinate legislation must be accompanied by a statement of compatibility.[86] Efforts to implement a similar Charter at the national level have been frustrated and Australia's Constitution may prevent conferring the 'declaration' power on federal judges.[87]
Ireland's use ofSpecial Criminal Courts where juries are replaced by judges and other special procedures apply has been found to not violate the treaty: "In the Committee's view, trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing and the facts of the present case do not show that there has been such a violation."[88]
New Zealand took measures to give effect to many of the rights contained within it by passing theNew Zealand Bill of Rights Act in 1990, and formally incorporated the status of protected person into law through the passing of the Immigration Act 2009.[89]
Sri Lankan authorShakthika Sathkumara was arrested on 1 April 2019 for inciting religious violence, following a publication of a short story about homosexuality andchild abuse at a Buddhist temple in Sri Lanka. The author had been adjudged the bestSinhala language short story writer in Sri Lanka's National Youth Literary Festivals of 2010 and 2014, and was twice the recipient of the north western provincial state literary award. A group of Buddhist monks had stormed the author's workplace demanding punitive action against him after the story first appeared onFacebook; the ICCPR prohibits "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Human rights organizationsCivicus and theAsian Human Rights Commission (AHRC) have asserted that the charges are spurious and a clear violation of the author's right tofreedom of expression.[90][91]
TheUnited States Senate ratified the ICCPR in 1992, with fivereservations, five understandings, and four declarations.[71] Some have noted that with so many reservations, its implementation has little domestic effect,[92] although it has been argued that the reason behind the Senate reservations is that Article 20(2) (regardinghate speech) of the ICCPR may be unconstitutional according to Supreme Court precedent.[93] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[94] and aSenate Executive Report stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts".[95]
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 within the US judicial system is created by ratification.[96] However, a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of theVienna Convention on the Law of Treaties and international law,[97] and there is question as to whether the non-self-execution declaration is even constitutional[98] under theSupremacy Clause (Prof.Louis Henkin argues that it is not[99]). Prof. Jordan Paust criticizes the United States' ratification subject to the non-self-execution declaration as being an abuse of the treaty.[100]
Most states in the world are parties to the ICCPR. As of 2024, the following 24 states have not become party to it, while six states have signed the Covenant but not ratified it.[101]
^Article 49 allowed that the covenant would enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession
^abcdefYugoslavia signed the Covenant on 8 August 1967 and ratified it on 2 June 1971; it entered into force for Yugoslavia on 23 March 1976. Following thebreakup of Yugoslavia, the following states located in the former Yugoslavia made declarations regarding that status of the Covenant with regard to themselves:
Bosnia and Herzegovina – On 1 September 1993, it declared that the Covenant was in force for it since 6 March 1992.
Federal Republic of Yugoslavia – On 12 March 2001, it declared that the Covenant was in force for it since 27 April 1992. On 4 February 2003, the Federal Republic of Yugoslavia changed its name to Serbia and Montenegro, and on 3 June 2006Serbia succeeded Serbia and Montenegro. Therefore, for Serbia, the Covenant has retroactively been in force since 27 April 1992.
Republic of Macedonia – On 18 January 1994, it declared that the Covenant was in force for it since 17 September 1991.
Montenegro – On 23 October 2006, it declared that the Covenant was in force for it since 3 June 2006.
^Although Cambodia signed the Covenant when it was known as Democratic Kampuchea, it filed an instrument of accession, not ratification, on 26 May 1992.
^abCzechoslovakia signed the Covenant on 7 October 1968 and ratified it on 23 December 1975; it entered into force for Czechoslovakia on 23 March 1976. Following thedissolution of Czechoslovakia, theCzech Republic declared on 22 February 1993 that the Covenant was in force for it since 1 January 1993 andSlovakia declared on 28 May 1993 that the Covenant was also in force for it since 1 January 1993.
^East Germany signed the Covenant on 23 March 1973 and ratified it on 8 November 1973; it entered into force for East Germany on 23 March 1976. Following thereunification of Germany on 3 October 1990, East Germany ceased to exist.
^On 25 August 1997, North Korea notified the Secretary-General of the United Nations that it was withdrawing from the Covenant. However, the Secretary-General still considers North Korea a state party to the Covenant because the Covenant does not allow for withdrawal and therefore withdrawal would only be possible if all other states parties allowed it, which has not occurred.
^abPortugal extended the territorial application of the Covenant to Macau on 27 April 1993. On 3 December 1999, China notified the Secretary-General of the United Nations that the Covenant would still be in force forMacau following thetransfer of sovereignty on 20 December 1999.
^abBoth China and the United Kingdom notified the Secretary-General that the Covenant would continue to remain in force forHong Kong upontransfer of sovereignty on 1 July 1997.
^ The Republic of China signed the Covenant on 5 October 1967 but did not ratify it at the time. On 25 October 1971, it lost its United Nations membership. On 31 March 2009, theLegislative Yuan of the Republic of China ratified it along with theInternational Covenant on Economic, Social and Cultural Rights, but the deposit was rejected by the UN.
^The Vatican is not a member of the United Nations but holds observer status.
^For example, Part 4, Human Rights Act 2004 (ACT).[84]
^For example, Part 4, Human Rights Act 2004 (ACT).[84]
^Vines, Timothy; Faunce, Thomas Alured (2012). "A Bad Trip for Health-Related Human Rights: Implications of Momcilovic v the Queen (2011) 85 ALJR 957".Journal of Law and Medicine.19 (4). Rochester, NY:685–98.PMID22908613.SSRN2257114.
^Black, Allinda; Hopkins, June, eds. (2003)."Covenant on Civil and Political Rights".The Eleanor Roosevelt Papers. Hyde Park, New York: Eleanor Roosevelt National Historic Site. Retrieved21 February 2009.
^Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also seeBuell v. Mitchell274 F.3d 337Archived 17 May 2010 at theWayback Machine (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases)
^Vienna Convention on the Law of Treaties, art. 19, 1155 U.N.T.S. 331 (entered into force 27 January 1980) (specifying conditions under which signatory States can offer "reservations")
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