Lecture 13: Implementation mechanism and procedure under ICCPR

OBJECTIVES

1. to acquaint the students about the practical applicability of the international covenant
on civil and political rights.

2. to understand about the concept and review process of the international covenant on
civil and political rights.

3. to highlight the role of Human Rights Committee.

4. to illustrate about the several other important aspects like reservations, declarations,
derogations and the right of individual petition etc.

Implementation Mechanism and Procedure under the ICCPR

Introduction:
There is an assumption that civil and political rights create immediate state obligations
while economic, social and cultural rights require a pragmatic implementation. An immediate
obligation means a duty to implement the obligations undertaken under a treaty upon
becoming a state party to the covenant irrespective of the available resources. A progressive
implementation however means a mere promotional type of commitment to enhance a certain
objective and to realize it progressively depending on the availability of the necessary
resources. A comparison with the ICESCR seems to support the assumption that ICCPR
creates immediate and unconditional obligations of implementation because the wordings of
Article 2, Para 1 of the Covenant provides that each state party undertakes to respect and to
ensure the Covenant rights without making reference to the progressive realization as in the
ICESCR.

Practical applicabilities of ICCPR in various countries:

The two primary mechanisms of the covenant are its reporting procedures and its
interstate complaints procedures. Article 40 of the International Covenant on Civil and
Political Rights require to submit reports to the Human Rights Committee on ‘the measures
they have adopted which give effect to the rights recognized [in the covenant] and on the
progress made in the enjoyment of those rights’. The committee then examines the reports
and submits general comments to the states parties. Article 41 provides the option of an
interstate complaint mechanism, but before states parties may file a complaint against another
state party, both states must have exercised the option of making a declaration of their
recognition of the committee’s jurisdiction to consider interstate communications. The
Optional Protocol of the Covenant adopted as a second treaty and also its comments entering
into force in 1976, provides procedures by which individuals may fight petition in the Human
Rights Committee (HRC) in regards to violations of their rights under the covenant.
In certain States such as the Netherlands, the
ICCPR has direct effect and is therefore part of a state
party’s domestic law. Alleged breaches can be litigated in
domestic court. In other states the ICCPR is not self
executing, and so is not automatically part of municipal
law, for e.g. in the U.K, India and Australia the
ICCPR has not been so incorporated. However in these states
statutes of various kinds protect the rights contained in the ICCPR.
More particularly, the ICCPR in a nutshell includes the following Civil and Political
Rights, which are also available in the Constitution of India either in the form of
Fundamental Rights or as other legal rights:
Right to life, liberty and security of persons;
Freedom from slavery and torture;
Equality before the law;
Protection against arbitrary arrest;
Right to a fair trial;
Right to own property;
Right to political participation;
Right to marriage and found family;
Fundamental freedom of thought; conscience and religion, opinion and
expression; Freedom to assemble peacefully and form unions and
association; Right to take part directly or indirectly in governance of the
country.
India acceded to the ICCPR on 10 th April, 1979 and the covenant became effective for
India on 10th July 1979. In its initial report India has submitted that many of the human rights
and freedoms in the ICCPR have been guaranteed in the Constitution of India.

The role of Human Rights Committee:

The ICCPR is monitored by a United Nations' committee known as the Human Rights
Committee (HRC). The Committee is composed of 18 independent members experienced in
the areas of human rights covered under the ICCPR. Although nominated by their country,
Committee members serve in their individual capacities, not as representatives of their
countries. The Committee meets three (3) times per year to review periodic reports from
countries that have ratified the ICCPR. In these meetings, governments must provide an
accounting of how they are implementing human rights standards under the treaty.
Governments must report initially one year after acceding to the Covenant and then whenever
the Committee requests, which is usually every four (4) years. The Committee meets in
Geneva and New York.
The review is a multi-stage process that begins with the country submitting its
periodic report. Based on that report and input from social justice groups and other NGOs,
the Committee comes up with a series of questions that the country must respond to in
writing. These questions are known as the List of Issues, and it establishes the agenda for the
upcoming country dialogue. If social justice groups wish to influence the agenda, they must
provide short written reports called "List of Issues Submissions" to the Committee before it
comes up with the List.
In the next stage of the process, the country provides written replies to the List, which
is then used as the basis to begin the dialog during the in-person review. For the dialogue, the
Committee solicits and incorporates "shadow reports" from groups working on the ground
with people and communities directly impacted by human rights violations. After the
dialogue, the Committee issues its recommendations to the country; these are called
Concluding Observations. Social justice groups' participation is essential here as well, as they
begin to continue lobbying and advocacy efforts to get these and past recommendations
implemented at home.

Importance of ICCPR:
The International Covenant on Civil and Political Rights (ICCPR) was drafted to
cover rights that protect physical integrity, procedural due process rights, and non-
discrimination rights (civil), as well as safeguarding the meaningful participation in the
political life of one’s society, including rights such as freedom of expression, assembly, and
association, and the right to vote (political). As of June 2004 there were 150 States Parties to
the ICCPR, 104 parties to the First Optional Protocol and 51 parties to the Second Optional
Protocol.
The number of states parties to both the ICCPR and the First Optional Protocol increased
considerably following the end of the Cold War, when human rights became “a less
politicized discipline within the United Nations.” The United States, a long-term absentee,
ratified the ICCPR in 1992 and in the same year, the First Optional Protocol entered into
force in the Russian Federation. With the creation of new states in the former Soviet Union
and Eastern Europe, the view has been taken that these successor States have automatically
succeeded to their predecessors’ obligations under the ICCPR and the Optional Protocols.
For example, the People’s Republic of China has continued to submit reports to the
monitoring body of the ICCPR, the HRC, on behalf of Hong Kong since it acquired the
territory from the United Kingdom in 1997 even though China itself has signed but not
ratified the treaty.
Reservations:
Upon ratification of the Covenant, a State Party may come into a reservation to one or
more of the provisions. The reservation process renders the reserved provision non-binding
for the State Party concerned. The International Law Commission, in its draft guidelines,
defined a reservation as “an unilateral statement, however phrased or named, made by a State
or an international organization when signing, ratifying, formally confirming, accepting,
approving or acceding to a treaty or by a State when

making a notification of succession to a treaty, whereby the State or organization purports to

exclude or to modify the legal effect of certain provisions of the treaty in their application to
that State or to that international organization.” a reservation can also act partially to reduce
the effect of a certain guarantee, rather than nullify its application. There is no doubt that
reservations diminish the effectiveness of treaties, and the ICCPR is not an acceptation in this
regard.

Declarations:
Reservations may be distinguished from other statements issued by states parties when
ratifying the ICCPR. These statements are known as understandings or, more commonly, as
declarations. These statements give notice of a State’s interpretation of the Covenant and
have no legal effect in international law.
The International Law Commission defined an interpretative declaration as “a
unilateral statement, however phrased or named, made by a State or by an international
organization whereby that State or that organization purports to specify or clarify the
meaning or scope attributed by the declarant to a treaty or to certain of its provisions.” The
HRC observed in paragraph 3 of its General Comment 24 that it is not always easy to
distinguish a reservation from a declaration as to a State’s understanding of the interpretation
of a provision, or from a statement of policy.

Derogations:
Article 4 of the ICCPR deals with the contentious issue of derogations. According to
commentators, the right of derogation, like the right of reservation, may represent a
‘necessary evil.’ Whilst it is arguable that civil liberties must be curtailed during public
emergencies to ensure general public security, it is also true that some of the most heinous
human rights abuses occur during purported public emergencies. It is therefore of utmost
importance that derogations to the Covenant are strictly monitored and so doing not serve as
a smokescreen for the destruction of rights. Derogations of course can only be entered in time
of grave public emergency, and the text of Article 4 guarantees that this emergency must
reach a certain severity and that some provisions may not be derogated.

The Right of Individual Petition:

According to the Preamble to the First Optional Protocol, the HRC is given competence to
consider communications from alleged victims, “in order to further achieve the purposed of
the ICCPR.” Under article 1 of the Protocol, a State party recognises the competence of the
HRC “to receive and consider communications from individuals subject to its jurisdiction
who claim to be victims of a violation by that State Party of any of the rights set forth in the
Covenant.” The communication submitted to the HRC must be in written form (article 2
Optional Protocol I) and all available domestic remedies must have been exhausted (articles
5(2)(b)). The HRC’s consideration and examination of communications is conducted in
private and its final ‘views’ are published.

Conclusion:
The International Covenant on Civil and Political Rights is an International Human Rights
instrument specifically in their in their protecting Civil and Political Rights. This category of
rights is usually referred to as first generation rights. The development of the human rights
principles under the covenant have been long history and its proper infective implementation
will definitely make the covenant a great successes.
Apart from the above discussion the most important feature of the covenant is that it is a
universal instrument containing the binding of legal obligation force its parties that aims to
protect state list persons as well as nationals. A large number of states parties to the covenant
as made the fact that many of its provisions are now becoming the part of customary
international law.

FAQs

1. What do you understand by the concept of ‘immediate obligation’?

Ans: An immediate obligation means a duty to implement the obligations
undertaken under a treaty upon becoming a state party to the covenant irrespective of
the available resources.

2. What has been required by Article 40 of the International Covenant on Civil and
Political Rights?
Article 40 of the International Covenant on Civil and Political Rights requires
to parties should submit reports to the Human Rights Committee on ‘the measures
 they have adopted which give effect to the rights recognized in the covenant and on
the progress made in the enjoyment of those rights’.

3. What is Human Rights Committee?

Ans : The ICCPR is monitored by a United Nations' committee known as the
Human Rights Committee (HRC). The Committee is composed of 18 independent
members experienced in the areas of human rights covered under the ICCPR.

4. What do you mean by List of Issues?

Ans: The Human Rights Committee comes up with a series of questions that the
country must respond to in writing and these questions are popularly known as the
List of Issues.

5. Why ICCPR was mainly drafted?

Ans: ICCPR was drafted to cover rights that protect physical integrity, procedural
due process rights, and non-discrimination rights (civil), as well as safeguarding the
meaningful participation in the political life of one’s society, including rights such as
freedom of expression, assembly, and association, and the right to vote (political).

6. What do you understand by reservation process?

Ans: Upon ratification of the Covenant on civil and political rights, a State Party
may come into a reservation process to one or more of the provisions. The reservation
process renders the reserved provision non-binding for the State Party concerned.

7. What do you mean by the issue of derogations?

Ans: Article 4 of the ICCPR deals with the contentious issue of derogations.
According to commentators, the right of derogation, like the right of reservation, may
represent a ‘necessary evil.’ It is, therefore, utmost important that derogations to the
Covenant are strictly monitored and do not serve as a smokescreen for the destruction
of rights.

GLOSSARY

1. Obligation: A course of action imposed by society, law, or conscience by which

one is bound or restricted.

2. Treaty: A formal agreement between two or more states, as in reference to terms of

peace or trade.
 3. Judiciary: The judiciary is the system of courts that interprets and applies the law
in the name of the state.

4. Fundamental rights: Fundamental rights are generally regarded set of legal

protections in the context of a legal system, wherein such system is itself based
upon this same set of basic, fundamental, or inalienable rights

5. Common law: Common law, also known as case law or precedent, is law
developed by judges through decisions of courts and similar tribunals.

6. Legal rights: legal rights are those bestowed onto a person by a given legal
system.

7. Equality before law: It is the principle under which all people are subject to the
same laws of justice.

REFERENCES

1. Agarwal, H.O.; 2006 : Human Rights, Central Law Publication.

2. Dr. Agarwal, H.O.; 2005 : International Law and Human Rights, Central Law
Publication, 12th Edition.

3. Prof. Joshi, K.C.; 2006 : International Law and Human Rights, Eastern Book
Company.

4. Sanajaoba, N. ; 1994 : (ed) Human Rights, Omsons, New Delhi.