Defining Civil and Political Rights

The Jurisprudence of the United Nations Human Rights Committee

Alex Conte, Richard Burchill

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754676560
• eBook ISBN: 9781317153603
• Topic: Jura
• Subtopic: Völkerrecht

Defining Civil and Political Rights provides a comprehensive analysis and commentary on the decisions - technically known as views - of the United Nations Human Rights Committee, for use by human rights lawyers throughout the world. Each of the substantive rights and freedoms set out in the International Covenant on Civil and Political Rights is considered in detail, by analysis of final reviews and comments of the Human Rights Committee. This second edition has been thoroughly revised and updated to take account of recent jurisprudence on the Human Rights Committee. New material has been added based upon substantive areas of the committee's jurisprudence.

Chapter 1
Introduction

Alex Conte and Richard Burchill¹

The purpose of this book is to provide a narrative account of how the United Nations Human Rights Committee (HRC) has developed and continues to develop its jurisprudence under the individual communication procedure contained in the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).² As mentioned in the Preface to this title, its focus is limited to an examination of the Committee’s decisions (technically referred to as ‘views’), and its General Comments on the application and interpretation of the substantive rights and freedoms set out in Parts I and II of the Covenant. Attention is paid to these two areas of the Committee’s work in a manner which examines the meaning of rights and freedoms, rather than focusing upon communications against any one State party, or upon observations and conclusions on State party reports under article 40 of the ICCPR. The views and comments of the Human Rights Committee are thus analysed with the aim of establishing a comprehensive reference point for civil and political rights practitioners, judiciary and academics. Before doing this, however, it is necessary to provide some background to the emergence and development of the ICCPR and its related instruments, and to give some explanation of terms, as well as the overall context within which the HRC functions.

Introduction

A Brief History of the ICCPR

The ICCPR is one of three instruments which constitute what is sometimes known as the ‘International Bill of Rights’.³ The other instruments which comprise the Bill of Rights are the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economic Social and Cultural Rights (ICESCR).⁴ As recognized in the 1993 Vienna Declaration and Programme of Action, the UDHR is the parent of the two Covenants.⁵ It was adopted as a non-binding resolution of the General Assembly of the United Nations on the 10 December 1948; a date now celebrated annually as International Human Rights Day. It contains a long catalogue of human rights which comprehends what have now come to be known as civil and political rights on the one hand and economic, social and cultural rights on the other. The terminology of ‘first’ and ‘second’ generation rights is also sometimes applied to these two categories of rights to signify the fact that civil and political rights are, by and large, concerned with freedom from State interference while economic, social and cultural rights represent objectives or aspirations for a State to pursue in promoting the well-being of its people.⁶ There is some doubt whether it is possible to differentiate between the two categories of rights in such a hard and fast way, and the UN itself has always taken the view that all human rights are indivisible and mutually supportive.⁷

When it was adopted, it was envisaged that the UDHR would eventually be transformed from a non-binding resolution into a legally binding agreement.⁸ This, however, did not occur, largely for two reasons. First, ideological disputes between the Western and Eastern Blocs over the priorities of the two sets of rights meant that agreement could not be reached over their inclusion in a single legally binding instrument. Second, the methods of implementing the two categories of rights were considered to be divergent: while it was thought that civil and political rights could be implemented with some immediacy, economic, social and cultural rights could only, it was argued by many, be implemented progressively and programmatically depending upon the resources available to each State. The result was the emergence of two instruments each designed to protect the different categories of rights. Furthermore, the methods of supervision envisaged for each of the Covenants also led to controversy. While States parties’ obligations under the Covenants were to be monitored by way of periodic reports detailing the measures which they had taken to recognize and give effect to the rights protected, the Eastern Bloc objected to the creation of an independent Human Rights Committee to oversee the performance of obligations under the ICCPR. The ICESCR on the other hand was to be monitored by the Economic and Social Council (ECOSOC), a political organ of the UN and a forum in which States could effectively negotiate out any difficulties which might arise in their human rights records. A proposal by the Netherlands to incorporate a right of individual communication in order to police the ICCPR also met with hostility from a number of States, including the USA and the USSR. This particular problem was overcome in the Third Committee of the UN General Assembly by the proposal and ultimate adoption of an Optional Protocol which would allow States to accept the right of individual communication to the HRC through a separate international treaty.

The ICCPR was adopted by the United Nations General Assembly in December 1966 and entered into force on 23 March 1976, three months after it had received its thirty-fifth ratification.⁹ Since the Covenant is of potentially worldwide application it is occasionally referred to as one of the UN’s ‘universal’ instruments. At the time of writing this chapter, the ICCPR has 162 parties, with eight further States who are currently signatories only, representing adherence to the Covenant by a substantial majority of the world’s States and self-governing territories.¹⁰

The Nature of Civil and Political Rights

As noted above, a distinction is often made between civil and political rights, or first generation rights, and economic, social and cultural rights, or second generation rights. Although it is clear that the modalities of their implementation are different, their interrelationship is far more complex than a simple statement of categories of rights would lead one to suppose. Furthermore, it might also be assumed that the term civil and political rights implies a distinction between two different, but related, sets of rights. While civil rights are those rights which are calculated to protect an individual’s physical and mental integrity, to ensure that they are not the victims of discrimination, and to preserve their right to a fair trial, political rights are those which ensure that individuals are able to participate fully in civil society. Such rights include rights of democratic participation, such as the right to vote and to participate in the public life of the State, freedom of expression and assembly, and freedom of thought, conscience and religion.

Some civil and political rights, however, have a dual or hybrid nature such as, for example, the right to marry and found a family. While the ‘family’ is regarded as the ‘natural and fundamental unit of society’,¹¹ it is clear that the changing nature of the family and its social role is not simply a civil right but can also be counted a social right. The evolutionary nature of such a right may thus not be well suited to the requirement that all aspects of the right must be implemented immediately. Furthermore, the right which prohibits discrimination has the capacity for application beyond civil and political rights alone, as the controversial jurisprudence of the HRC in this area has demonstrated.¹² The Committee has not established any strong distinctions when dealing with the different types of rights contained in the Covenant. Instead the approach has been to refer to article 2 of the ICCPR which establishes an ‘obligation to respect and ensure the rights recognized by the Covenant’ and this obligation has immediate effect for all States parties.¹³

General Characteristics of the ICCPR

The substantive rights protected by the Covenant are drafted with greater precision than their Universal Declaration counterparts. There are, however, some differences in the rights protected. Rights and freedoms protected by the ICCPR which are not included in the Universal Declaration are: minority rights; freedom from imprisonment for inability to fulfil a contractual obligation, such as the payment of a debt; the right to humane treatment while in detention; the right of children to acquire a nationality; and special measures of protection for minors. Amongst the rights referred to in the Universal Declaration, which are not included in the Covenant, are: the right to asylum; and the right to own property.

Furthermore, unlike the Universal Declaration, the ICCPR contains a derogation provision which allows States parties to temporarily suspend the application of certain rights ‘in time of public emergency that threatens the life of the nation’.¹⁴ Rights which are non-derogable, and thus not capable of suspension, are: the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment; freedom from slavery; freedom from imprisonment for failure to fulfil a contractual obligation; freedom from retroactive criminal laws; the right to recognition as a person before the law; and freedom of thought, conscience and religion.

Obligations of States Parties

The General Nature of ICCPR Obligations

Under article 2(1) of the Covenant, States parties assume the following obligation:¹⁵

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, 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.

The limits of this obligation have not been greatly analysed by the Human Rights Committee, but a number of preliminary points might be made about its content. First, the obligation to respect and ensure Covenant rights is owed to individuals within a State’s territory and subject to its jurisdiction. The Covenant is thus concerned with the individual person and not collectives of individuals (despite the wording of article 1, which guarantees the right of peoples to self-determination)¹⁶ or artificial legal persons such as corporations, charitable organizations or other similar legal foundations.¹⁷ There are certain rights which appear to be collective in nature, such as the right of individuals to belong to ethnic, linguistic or religious minorities, but it is the right of the individual in question to belong to these preexisting minorities which is of significance.¹⁸ Second, individuals must be within the State’s territory or subject to its jurisdiction. This does not mean that all individuals are treated exactly the same for the purposes of the attribution of various rights, since there are inevitably certain limitations on the rights of aliens and those who are not lawfully present within the territory of the State.¹⁹ In other respects, however, all individuals, be they citizens or non-citizens, are on an ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Table of Contents
• Table of Cases
• About the Authors
• Preface
• 1 Introduction
• 2 Procedure Under the Optional Protocol
• 3 Limitations to and Derogations from Covenant Rights
• 4 Democratic and Civil Rights
• 5 Security of the Person
• 6 The Judicial Process
• 7 Privacy, Honour and Reputation
• 8 Rights of the Family and Children
• 9 Self-Determination
• 10 Minority Rights
• 11 Equality and Non-Discrimination
• Appendix 1 International Covenant on Civil and Political Rights
• Appendix 2 Optional Protocol to the International Covenant on Civil and Political Rights
• Appendix 3 Party Status to the International Covenant on Civil and Political Rights and its Optional Protocol (as at 18 April 2008)
• Appendix 4 Model Complaint Form
• Index