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United Nations Aud iovisua l L ibra ry of I nte rna tional La w I NTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS By Christian Tom us cha t Profess or e m e ri tus at Hum boldt Unive rsity , Be rl in After the horrors of Worl d War I I , a broa d conse nsus e m e rged a t the worldwide leve l dem anding tha t the individual hum an be ing be place d unde r the protection of the inte rnat iona l com m unity. As pa rticula rly the a trocities com m itte d ag a inst sp e cific eth nic groups h a d shown , national gove rnmen ts could gravely f ail in the ir duty to ensu re the life and the liberty of their ci tizens. Some had eve n become m urderous institutions. However, neve r aga in sh ould a holocaust occur. A ccordi ngl y, since the less on l ea rned was that prote ctive m ech an ism s at the d om es tic l e vel alone did not provide s ufficien tly stab le sa fegu ards, it beca m e a lm ost self - evi den t to entrust the plan ned ne w world organization with a ssum ing the rol e of gua rantor of hum an rights on a u niversal scale. A t the San Fran cisco Conferen ce in 194 5, som e Lat in Am e rican cou ntries re que ste d tha t a full code o f human rights be included in the Charter of the United Nations itself. Since such an initiat ive req uired ca reful pre pa ration, the ir motions could not be successful at tha t stag e . Nonethe les s, huma n rights were e m brace d as a m atte r of principle. The Charter contains ref ere nces to hum an rights i n the Pream ble, am ong the pu rposes of the Organization (Article 1) an d in seve ral other p rovisions (A rticles 13, 55 , 62 a nd 6 8). I m med iat ely after the actua l se tting up of the insti tutional ma chinery provide d for by the Charte r, the ne w Comm ission on Huma n Ri ghts be ga n its work for the crea tion of an Inte rna tiona l Bill of Ri ghts . In a first ste p, the Univers al Declara tion of Hum an Ri ghts was dra fte d, which th e Gene ral Asse m bly adopted on 10 Dece m ber 1948. I n order to m ake hum an rights a n i nstrum ent eff ectively shapi ng the lives of indivi dua ls an d na tions, m ore tha n just a p olitica l proclam at ion was ne ed ed . Hence , from the very outset there was general agree me nt to t he e ffect that the substance of the Univers a l Decla ration should be tra nslate d into the h a rd leg al f orm of an interna tiona l treaty. The Ge nera l Asse m bly reaffirme d the nece ssity of complem en ting, as h ad alrea dy been done in the Universal Declaration, traditional civil and political rights with economic, social an d cultura l rights , since b oth classe s of rights we re “inte rconne cte d an d inte rdepe nde nt” (see se ction E of res olution 421 (V) of 4 Decem be r 1950). The only question was whether, following the concept of unity of all human rights, the new conventi onal rights sh ould be encom pas sed in one interna tional i nstrument or whether, on account of their different specificities, they should be arranged according to those spe cificities . Weste rn nations in particular claime d that the im plem en ta tion proces s could not be ide ntical, econom ic an d social rights p arta ki ng more of the natu re of goals to be a tta ine d whe rea s civil an d politica l rights h ad to be res pe cte d strictly and without a ny res erva tions. It is this latte r view tha t e ven tua lly pre vailed . By res olution 543 (VI) of 4 Feb ruary 1952, the Genera l Assem bly directed the Comm ission on Huma n Ri ghts to pre pa re, inste a d of just one Cove na nt, two draft treat ie s; a Covenan t set ting forth civil an d political rights and a parallel Covenant providing for economic, social and cultural rights. Th e Comm is s io n com p le te d it s wor k in 1954. Y et it too k man y y ea r s b e fo r e eventua lly t h e political climate was ripe for the adoption of these two ambitious texts. While both the Western and the Socialist States were still not fully convinced of their usefulness, it was eve ntua lly press ure b rought to be ar up on the m from Thi rd World countries which prompted themto approve the outcome of the protracte d ne gotiating process . A ccordi ngl y, on 16 Dece m ber 1966, the two Covena nts were a dopted by the Gene ral Asse m bly by Copyri ght ©United Nations, 20 08. All right s re se rved www.un.org/law/avl 1
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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
By Christian Tomuschat
Professor emeritus at Humboldt University, Berlin
After the horrors of World War II, a broad consensus emerged at the worldwidelevel demanding that the individual human being be placed under the protection of theinternational community. As particularly the atrocities committed against specific ethnicgroups had shown, national governments could gravely fail in their duty to ensure the lifeand the liberty of their citizens. Some had even become murderous institutions. However,never again should a holocaust occur. Accordingly, since the lesson learned was thatprotective mechanisms at the domestic level alone did not provide sufficiently stablesafeguards, it became almost self-evident to entrust the planned new world organizationwith assuming the role of guarantor of human rights on a universal scale. At the SanFrancisco Conference in 1945, some Latin American countries requested that a full code of human rights be included in the Charter of the United Nations itself. Since such an
initiative required careful preparation, their motions could not be successful at that stage.Nonetheless, human rights were embraced as a matter of principle. The Charter containsreferences to human rights in the Preamble, among the purposes of the Organization(Article 1) and in several other provisions (Articles 13, 55, 62 and 68). Immediately afterthe actual setting up of the institutional machinery provided for by the Charter, the newCommission on Human Rights began its work for the creation of an International Bill of Rights. In a first step, the Universal Declaration of Human Rights was drafted, which theGeneral Assembly adopted on 10 December 1948.
In order to make human rights an instrument effectively shaping the lives of individuals and nations, more than just a political proclamation was needed. Hence, fromthe very outset there was general agreement to the effect that the substance of theUniversal Declaration should be translated into the hard legal form of an international
treaty. The General Assembly reaffirmed the necessity of complementing, as had alreadybeen done in the Universal Declaration, traditional civil and political rights with economic,social and cultural rights, since both classes of rights were “interconnected andinterdependent” (see section E of resolution 421 (V) of 4 December 1950). The onlyquestion was whether, following the concept of unity of all human rights, the newconventional rights should be encompassed in one international instrument or whether, onaccount of their different specificities, they should be arranged according to thosespecificities. Western nations in particular claimed that the implementation process couldnot be identical, economic and social rights partaking more of the nature of goals to beattained whereas civil and political rights had to be respected strictly and without anyreservations. It is this latter view that eventually prevailed. By resolution 543 (VI) of 4February 1952, the General Assembly directed the Commission on Human Rights toprepare, instead of just one Covenant, two draft treaties; a Covenant setting forth civil and
political rights and a parallel Covenant providing for economic, social and cultural rights. The Commission completed its work in 1954. Yet it took many years before eventually thepolitical climate was ripe for the adoption of these two ambitious texts. While both theWestern and the Socialist States were still not fully convinced of their usefulness, it waseventually pressure brought to bear upon them from Third World countries whichprompted them to approve the outcome of the protracted negotiating process. Accordingly,on 16 December 1966, the two Covenants were adopted by the General Assembly by
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consensus, without any abstentions (resolution 2200 (XXI)). Since that time, the twocomprehensive human rights instruments of the United Nations have sailed on differentcourses. However, contrary to many pessimistic expectations, they have mostly beenratified simultaneously. The difference in the circle of States parties is low. As of June2008, the International Covenant on Civil and Political Rights (ICCPR) comprises 161
States parties, whereas the International Covenant on Economic, Social and CulturalRights (ICESCR) holds the second place with 158 ratifications. The Russian Federation,for instance, is a party to both Covenants, while the United States has left aside theICESCR, and China, on the other hand, has not found it convenient to ratify the ICCPR. Ingeneral, however, the lacunae include only a small part of the world population. Trueuniversality is within reach.
The ICCPR comprises all of the traditional human rights as they are known fromhistoric documents such as the First Ten Amendments to the Constitution of the UnitedStates (1789/1791) and the FrenchDéclaration des droits de l’homme et du citoyen(1789).However, in perfect harmony with its sister instrument, Part I starts out with the right of self-determination which is considered to be the foundational stone of all human rights(article 1). Part II (articles 2 to 5) contains a number of general principles that apply across
the board, among them in particular the prohibition on discrimination. Part III enunciatesan extended list of rights, the first of which being the right to life (article 6). Article 7establishes a ban on torture or other cruel, inhuman or degrading treatment or punishment,and article 8 declares slavery and forced or compulsory labour unlawful. Well-balancedguarantees of habeas corpus are set forth in article 9, and article 10 establishes thecomplementary proviso that all persons deprived of their liberty shall be treated withhumanity.
Freedom of movement, including the freedom to leave any country, has found itsregulation in article 12. Aliens, who do not enjoy a stable right of sojourn, must as aminimum be granted due process in case their expulsion is envisaged (article 13). Fair trial,the scoperatione materiaeof which is confined to criminal prosecution and to civil suits atlaw, has its seat in articles 14 and 15. Privacy, the family, the home or the correspondence
of a person are placed under the protection of article 17, and the social activities of humanbeings enjoy the safeguards of article 18 (freedom of thought, conscience and religion),article 19 (freedom of expression), article 21 (freedom of assembly), and article 22(freedom of association). Going beyond the classic dimension of protection againstinterference by State authorities, articles 23 and 24 proclaim that the family and the childare entitled to protection by society and the State.
Article 25 establishes the right for everyone to take part in the running of the publicaffairs of his/her country. With this provision, the ICCPR makes clear that State authoritiesrequire some sort of democratic legitimacy. Finally, article 27 recognizes an individualright of members of ethnic, religious or linguistic minorities to engage in the culturalactivities characteristic of such minorities. No political rights are provided for. Minoritiesas such have not been endowed with any rights of political autonomy.
Article 26 establishes a clause on equality and non-discrimination which seeminglystands in contrast to article 2, paragraph 3, the introductory non-discrimination clause,which is ancillary in nature, being applicable only in conjunction with one of the othersubstantive rights. The Human Rights Committee, the organ entrusted with monitoringcompliance by States with their obligations under the ICCPR, has interpreted article 26 assetting forth a general ban on discrimination, without any regard for the field of life
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concerned. To date, this extension of the scope ratione materiae of article 26 remainscontested.
The Human Rights Committee is the principal actor at the international levelmandated to enforce the rights enunciated in the ICCPR. The instruments put at its disposalfor that purpose are of limited scope, however. States are required to submit at regularintervals reports which are carefully scrutinized; at the end of that process, the Committeesummarizes its assessment of the prevailing human rights situation by noting in particularits concerns in open and straightforward language without any diplomatic inhibitions. Suchconcluding observations are not legally binding. Similarly, the final views which theCommittee delivers after having examined an individual communication under the [First]Optional Protocol to the ICCPR lack any binding legal force. Of course, States areexpected to live up in good faith to the views addressed to them by the Committee. If they
just shoved away such recommendations, the whole procedure would make no sense. Inaddition, by formulating “general comments”, the Committee has opened up a newwindow of activity. Through such “general comments”, it explains the scope and meaningof the provisions of the ICCPR and clarifies general issues as they arise in the process of implementation.
It is at the national level that the ICCPR has exerted its greatest impact. When todayanywhere in the world a national constitution is framed, the ICCPR serves as the naturalyardstick for the drafting of a section on fundamental rights. In most countries, the ICCPRhas been made part and parcel of the national legal order although there is no general ruleof international law that would enjoin States to embrace a specific method of implementation. Thus, the United States has made a declaration according to which theICCPR is not self-executing within its domestic legal system. In some countries,administrative authorities and the courts are specifically enjoined to follow the applicableinternational guarantees when interpreting the national constitution (e.g., article 10,paragraph 2 of the Spanish Constitution). In other countries, the ICCPR has even beengiven the legal force of a provision of constitutional or quasi-constitutional rank (e.g.,article 15, paragraph 4, of the Constitution of the Russian Federation). These legal
techniques are not automatically successful, since, as a rule, national judges are not veryfamiliar with the guarantees laid down in international human rights instruments and aremore often than not reluctant to accord them precedence over the applicable national lawsand regulations.
Related Materials
T. Buergenthal, “The U.N. Human Rights Committee”, Max Planck Yearbook of UnitedNations Law, vol. 5, 2001, pp. 341–398.
S. Joseph, J . Schultz and M. Castan, The International Covenant on Civil and PoliticalRights. Cases, Materials, and Commentary, 2nd edition, Oxford University Press, Oxford,2005.
D. McGoldrick, The Human Rights Committee. Its Role in the Development of theInternational Covenant on Civil and Political Rights, 2nd edition, Clarendon Press, Oxford1994.
M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd edition,N.P. Engel, Kehl, 2005.
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Ch. Tomuschat, Human Rights: Between Idealism and Realism, 2nd edition, OxfordUniversity Press, Oxford, 2008.
