The International Covenant on Civil and Political Rights (ICCPR) is a United Nations treaty
based on the Universal Declaration of Human Rights, created on 16 December 1966 and entered into force on 23 March 1976.
The international covenant on civil and political rights : cases,
materials and commentary By Sarah Joseph, Jenny Schultz and Melissa
Castan
The International Covenant on Civil
and Political Rights (ICCPR) is the most important human rights treaty in the world. It is open for ratification to all states
so it has universal relevance. This book presents a comprehensive collation and analysis of the jurisprudence of the Human
Rights Committee, the monitoring body established under the ICCPR. The substantive articles of the ICCPR are analyzed in separate
chapters, incorporating excerpts from decisions under the First Optional Protocol, as well as relevant general comments and
concluding comments on states' parties. Decisions under other United Nations treaties, such as the International Convention
on the Elimination of All Forms of Racial Discrimination, are also excerpted to highlight complementary UN human rights jurisprudence.
Up-to-date material on questions of admissibility under the First Optional Protocol are also included. Comprehensively indexed
and cross-referenced, this book offers ready access to the complex jurisprudence of the Human Rights Committee and other UN
human rights treaty bodies. It is presented in a clear and illuminating manner to facilitate its use by the judiciary, human
rights practitioners, human rights activists, government institutions, libraries, academics, and students alike.
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. 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.
Five categories
1. Protection on individual's physical integrity (against things such as execution, torture, and arbitrary
arrest). 2. 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). 3. Protection based on gender, religious, racial or other
forms of discrimination. 4. Individual freedom of belief, speech, association, freedom of press, right to hold assembly. 5. Right to political participation (organise a political party, vote, voice contempt for current political authority).
Two
optional protocols
1. Mechanism by which individuals can launch complaints against member states. 2. Abolition
of the death penalty.
article 2 Bimonthly
publication highlighting article 2 of the ICCPR
Prominent critics in the human rights community, such as Prof. Louis Henkin (non-self-execution
declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust ("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.
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, 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 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.
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 this point, the United States certainly appears to be a signatory in name only.
