International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights is a United Nations treaty based on the Universal Declaration of Human Rights, created in 1966 and entered into force on 23 March 1976. Nations that have signed this treaty are bound by it.

The International Covenant on Civil and Political Rights is monitored by the Human Rights Committee,now superseded by the Human Rights Council, with permanent standing, to consider periodic reports submitted by member States on their compliance with the treaty. Members of the Human Rights Committee are elected by member states, but do not represent any State. The Covenant contains two Optional Protocols. The first optional protocol creates an individual complaints mechanism whereby individuals in member States can submit complaints, known as communications, to be reviewed by the Human Rights Committee. Its rulings under the first optional protocol have created the most complex jurisprudence in the UN international human rights law system.

The second 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.

National implementation and effects

The International Covenant on Civil and Political Rights currently has 160 States Parties and a further 5 signatories (pending ratification). A country-by-country list of declarations and reservations made upon ratification, accession or succession can be seen at http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm.

New Zealand

New Zealand's Parliament implemented the ICCPR in domestic law by passing the New Zealand Bill of Rights Act in 1990.

United States

The United States Senate ratified the ICCPR in 1992, with a number of reservations, understandings, and declarations. In particular, the Senate declared that "the provisions of Article 1 through 27 of the Covenant are not self-executing." 138 Cong. Rec. S4781-84 (1992). The Senate stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts." S. Exec. Rep., No. 102-23, at 15 (1992). 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 is created by ratification. Sei Fujii v. State 38 Cal.2d 718, 242 P.2d 617 (1952); also see Buell v. Mitchell 274 F.3d 337 (6th Cir., 2001) (discussing ICCPR's relationship to death penalty cases, citing to other ICCPR cases). Thus while the ICCPR is ostensibly binding upon the United States as a matter of international law, it does not form part of the domestic law of the nation.

Prominent critics in the human rights community, such as Prof. Louis Henkin^[1] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust^[2] ("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.^[3]

In effect, the United States "resembles that remark," as it 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. The Human Rights Committee recently 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.^[4]

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 any rate, the United States is but a signatory in name only.

Non-states parties

The majority of states in the world are states parties to the ICCPR. The following states are not states parties as of July 2007 (some of these states have signed the Covenenant):

1. Antigua and Barbuda
2. Bahamas
3. Bhutan
4. Brunei
5. China^[5]
   1. Comoros
   2. Cuba^[6]
      1. Fiji
      2. Guinea-Bissau^[7]
         1. Kiribati
         2. Laos^[8]
            1. Malaysia
            2. Marshall Islands
            3. Micronesia
            4. Myanmar (Burma)
            5. Nauru^[9]
               1. Oman
               2. Pakistan
               3. Palau
               4. Papua New Guinea
               5. Qatar
               6. Saint Kitts and Nevis
               7. Saint Lucia
               8. Samoa
               9. São Tomé and Príncipe^[10]
                  1. Saudi Arabia
                  2. Singapore
                  3. Solomon Islands
                  4. Tonga
                  5. United Arab Emirates
                  6. Vanuatu
                  7. Vatican City

                  References & notes

                  1. ^ Louis Henkin, U.S. Ratification of Human Rights Treaties: The Ghost of Senator Bricker, 89 Am. J. Int’l L. 341, 346 (1995)
                  2. ^ Jordan J. Paust, International Law As Law Of the United States 375 (2d ed. 2003)
                  3. ^ Hum. Rts. Comm. General Comment No. 24 (52), para. 11, 18-19, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994)[1]
                  4. ^ Concluding Observations of the Human Rights Comm.: United States of America, U.N. Doc. No. CCPR/C/USA/CO/3/Rev.1, para. 10 (2006)
                  5. ^ Signed on 1998-10-05.
                  6. ^ Signed on 2008-02-28.
                  7. ^ Signed on 2000-09-12.
                  8. ^ Signed on 2000-12-07.
                  9. ^ Signed on 2001-11-12.
                  10. ^ Signed on 1995-10-31.

                  
                  

                  External links

                  

                  Wikisource has original text related to this article:

                  International Covenant on Civil and Political Rights
                  • Full text of the Covenant
                  • Member States date of ratification, accession and succession along with statements or declarations made by member states (if any)
                  • The United Nations Human Rights Treaties: accessible collection of documents
                  • US Ratification of the ICCPR and its Domestic Implications by William A. Courson
                  • article 2 Bimonthly publication highlighting article 2 of the ICCPRca:Pacte Internacional dels Drets Civils i Polítics

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