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 international covenent of civil and political rights

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مُساهمةموضوع: international covenent of civil and political rights   الخميس أكتوبر 06, 2011 12:19 pm

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of September 2011[update], the Covenant had 72 signatories and 167 parties.[1]

The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).[2]

The ICCPR is monitored by the Human Rights Committee (a separate body to the Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally hoGenesisThe ICCPR has its roots in the same process that led to the Universal Declaration of Human Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco Conference which led to the founding of the United Nations, and the Economic and Social Council was given the task of drafting it.[2] 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 December 10, 1948.[2]

Drafting continued on the convention, but there remained significant differences between UN members on the relative importance of negative Civil and Political versus positive Economic, Social and Cultural rights.[3] 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."[4] The two covenants were to contain as many similar provisions as possible, and be opened for signature simultaneously.[4] Each would also contain an article on the right of all peoples to self-determination.[5]

The first document became the International Covenant on Economic, Social and Cultural Rights and the second the International Covenant on Civil and Political Rights. The drafts were presented to the UN General Assembly for discussion in 1954, and adopted in 1966.[6] Because of political reasons was the International Covenant on Economic, Social and Cultural Rights adopted shortly before the International Covenant on Civil and Political Rights.

[edit] SummaryThe Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.[7]

Part 1 (Article 1) recognises the right of all peoples to self-determination, including the right to "freely determine their political status",[8] pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence,[9] and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination.[10]

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 effective legal remedy for any violation of those rights.[11] 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,"[12] and to ensure that they are enjoyed equally by women.[13] The rights can only be limited "in time of public emergency which threatens the life of the nation,"[14] and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion.[15]

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 Cool;
liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9 – 11);
procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16);
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 the right to privacy (Articles 12, 13, 17 – 24);
prohibition of any propaganda for war as well as any avocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20);
political participation, including the right to join a political party and the right to vote (Article 25);
Non-discrimination, minority rights and equality before the law (Articles 26 and 27).
Many of these rights include specific actions which must be undertaken to realise them.

Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise 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".[16]

Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the Covenant.

[edit] Core provisions[edit] Rights to physical integrityMain articles: Right to life, Torture, and Slavery
Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law.[17] It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.[18] It therefore requires parties to take positive measures to reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.[18]

While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes"[19] and forbids it to be used on children and pregnant women[20] or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide.[21] The UN Human Rights Committee interprets the Article as "strongly suggest[ing] that abolition is desirable",[18] and regards any progress towards abolition of the death penalty as advancing this right.[18] The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders.

Article 7 prohibits torture and cruel, inhuman or degrading punishment.[22] As with Article 6, it cannot be derogated from under any circumstances.[15] The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement.[23] In response to Nazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.[22]

Article 8 prohibits slavery and enforced servitude in all situations.[24] The article also prohibits forced labour, with exceptions for criminal punishment, military service and civil obligations.[25]

[iberty and security of personMain article: Habeas corpus
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,[26] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[27] 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.[28]

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.[29] It also restricts the use of pre-trial detention,[30] requiring it to be imposed only in exceptional circumstances and for as short a period of time as possible.[28]

Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.[31] This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care.[32] The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment.[32] 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.[33] It requires prisons to be focused on reform and rehabilitation rather than punishment.[34]

Article 11 prohibits the use of imprisonment as a punishment for breach of contract.[35]

[edit] Procedural fairness and rights of the accusedMain articles: Rights of the accused and Right to a fair trial
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 in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[36] 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.[36] These obligations apply to both criminal and civil hearings, and to all courts and tribunals.[37]

The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence[38] and forbids double jeopardy.[39] It requires that those convicted of a crime be allowed to appeal to a higher tribunal,[40] and requires victims of a Miscarriage of justice to be compensated.[41] It establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.[42]

Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.[43]

Article 16 requires states to recognize everyone as a person before the law.[44]

[edit] Individual libertiesMain articles: Freedom of movement, Freedom of religion, Freedom of thought, Freedom of speech, Freedom of assembly, and Freedom of association
Article 12 guarantees freedom of movement, including the right of persons to choose their residence and to leave a country.[45] These rights apply to legal aliens as well as citizens of a state,[46] and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others.[47] The article also recognises a right of people to enter their own country.[48] The Human Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality.[46] 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".[46]

Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.[49]

Article 17 mandates the right of privacy.[50] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,[51] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.[52]

Article 18 mandates freedom of religion.[53]

Article 19 mandates freedom of expression.[54]

Article 20 mandates sanctions against inciting hatred.[55]

Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and also defines the International Labour Organisation.[55][56]

Article 23 mandates the right of marriage.[57] The wording of this provision excludes coverage of same-sex couples from protection by this marriage right, however it does not prohibit the recognition of same-sex marriage by a signatory country.[58]

Article 24 mandates the right to a nationality.[59]

[edit] Political rightsArticle 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 dependant 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.

[edit] Optional protocolsThere are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the Covenant.[60] This has led to the creation of a complex jurisprudence on the interpretation and implementation of the Covenant. As of December 2010[update], the First Optional Protocol has 113 parties.[61]

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.[62] As of December 2010[update], the Second Optional Protocol had 73 parties.[63]

[ Reservations This section requires expansion.

A number of parties have made reservations and interpretative declarations to their application of the Covenant.

Argentina will apply the fair trial rights guaranteed in its constitution 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 the House 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 people in 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 the European 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]

Congo, as per the Congolese Code of Civil, Commercial, Administrative and Financial Procedure, in matters of private law, decisions or orders emanating from conciliation proceedings may be enforced through imprisonment for debt.[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]

Gambia, as per it's constitution, will provide free legal assistance for accused persons charged with capital offences only.[1]

The United States has made reservations that none of the articles should restrict the right of free speech and association; 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 the Fifth, Eighth and/or Fourteenth Amendments to the US Constitution; that 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".[64]

[edit] National implementation and effectsThe 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]

[edit] AustraliaThe covenant is not enforceable in Australia, however, AHRC legislation [65] allows the Australian Human Rights Commission (AHRC) to examine enacted legislation [66] (to suggest remedial enactments[67]), its administration[68] (to suggest avoidance of practices [69]) and general compliance [70] with the covenant which is schedule to the AHRC legislation.[71]

[edit] New ZealandWhile New Zealand has not incorporated the ICCPR into law, it took measures to give effect to many of the rights contained within it by passing the New Zealand Bill of Rights Act in 1990.

[edit] United StatesReservations, understandings, and declarationsSee also: Vienna Convention on the Law of Treaties
The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[64] Some have noted that with so many reservations, its implementation has little domestic effect.[72] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[73] and in a Senate 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."[74]

[edit] Effect on domestic lawWhere 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 U.S. judicial system 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.

[ International lawProminent critics in the human rights community, such as Prof. Louis Henkin[75] (non-self-execution declaration incompatible with the Supremacy Clause) and Prof. Jordan Paust[76] ("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.[77]

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 (a) its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (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 (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (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.[78]

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.
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