International Covenant on Civil and Political Rights
New York, 16 December 1966
By Christian Tomuschat
Professor emeritus at Humboldt University, Berlin
After the horrors of World War II, a broad consensus emerged at the worldwide level demanding that the individual human being be placed under the protection of the international community. As particularly the atrocities committed against specific ethnic groups had shown, national governments could gravely fail in their duty to ensure the life and the liberty of their citizens. Some had even become murderous institutions. However, never again should a holocaust occur. Accordingly, since the lesson learned was that protective mechanisms at the domestic level alone did not provide sufficiently stable safeguards, it became almost self-evident to entrust the planned new world organization with assuming the role of guarantor of human rights on a universal scale. At the San Francisco 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 contains references 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 after the actual setting up of the institutional machinery provided for by the Charter, the new Commission 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 the General 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, from the very outset there was general agreement to the effect that the substance of the Universal Declaration should be translated into the hard legal form of an international treaty. The General Assembly reaffirmed the necessity of complementing, as had already been done in the Universal Declaration, traditional civil and political rights with economic, social and cultural rights, since both classes of rights were “interconnected and interdependent” (see section E of resolution 421 (V) of 4 December 1950). The only question was whether, following the concept of unity of all human rights, the new conventional rights should be encompassed in one international instrument or whether, on account of their different specificities, they should be arranged according to those specificities. Western nations in particular claimed that the implementation process could not be identical, economic and social rights partaking more of the nature of goals to be attained whereas civil and political rights had to be respected strictly and without any reservations. It is this latter view that eventually prevailed. By resolution 543 (VI) of 4 February 1952, the General Assembly directed the Commission on Human Rights to prepare, 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 the 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 eventually pressure brought to bear upon them from Third World countries which prompted 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 consensus, without any abstentions (resolution 2200 (XXI)). Since that time, the two comprehensive human rights instruments of the United Nations have sailed on different courses. However, contrary to many pessimistic expectations, they have mostly been ratified simultaneously. The difference in the circle of States parties is low. As of June 2008, the International Covenant on Civil and Political Rights (ICCPR) comprises 161 States parties, whereas the International Covenant on Economic, Social and Cultural Rights (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 the ICESCR, and China, on the other hand, has not found it convenient to ratify the ICCPR. In general, however, the lacunae include only a small part of the world population. True universality is within reach.
The ICCPR comprises all of the traditional human rights as they are known from historic documents such as the First Ten Amendments to the Constitution of the United States (1789/1791) and the French Déclaration 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 enunciates an extended list of rights, the first of which being the right to life (article 6). Article 7 establishes 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-balanced guarantees of habeas corpus are set forth in article 9, and article 10 establishes the complementary proviso that all persons deprived of their liberty shall be treated with humanity.
Freedom of movement, including the freedom to leave any country, has found its regulation in article 12. Aliens, who do not enjoy a stable right of sojourn, must as a minimum be granted due process in case their expulsion is envisaged (article 13). Fair trial, the scope ratione materiae of which is confined to criminal prosecution and to civil suits at law, 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 human beings 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 against interference by State authorities, articles 23 and 24 proclaim that the family and the child are entitled to protection by society and the State.
Article 25 establishes the right for everyone to take part in the running of the public affairs of his/her country. With this provision, the ICCPR makes clear that State authorities require some sort of democratic legitimacy. Finally, article 27 recognizes an individual right of members of ethnic, religious or linguistic minorities to engage in the cultural activities characteristic of such minorities. No political rights are provided for. Minorities as such have not been endowed with any rights of political autonomy.
Article 26 establishes a clause on equality and non-discrimination which seemingly stands 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 other substantive rights. The Human Rights Committee, the organ entrusted with monitoring compliance by States with their obligations under the ICCPR, has interpreted article 26 as setting forth a general ban on discrimination, without any regard for the field of life concerned. To date, this extension of the scope ratione materiae of article 26 remains contested.
The Human Rights Committee is the principal actor at the international level mandated to enforce the rights enunciated in the ICCPR. The instruments put at its disposal for that purpose are of limited scope, however. States are required to submit at regular intervals reports which are carefully scrutinized; at the end of that process, the Committee summarizes its assessment of the prevailing human rights situation by noting in particular its concerns in open and straightforward language without any diplomatic inhibitions. Such concluding observations are not legally binding. Similarly, the final views which the Committee delivers after having examined an individual communication under the [First] Optional Protocol to the ICCPR lack any binding legal force. Of course, States are expected 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. In addition, by formulating “general comments”, the Committee has opened up a new window of activity. Through such “general comments”, it explains the scope and meaning of 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 today anywhere in the world a national constitution is framed, the ICCPR serves as the natural yardstick for the drafting of a section on fundamental rights. In most countries, the ICCPR has been made part and parcel of the national legal order although there is no general rule of international law that would enjoin States to embrace a specific method of implementation. Thus, the United States has made a declaration according to which the ICCPR is not self-executing within its domestic legal system. In some countries, administrative authorities and the courts are specifically enjoined to follow the applicable international guarantees when interpreting the national constitution (e.g., article 10, paragraph 2 of the Spanish Constitution). In other countries, the ICCPR has even been given 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 very familiar with the guarantees laid down in international human rights instruments and are more often than not reluctant to accord them precedence over the applicable national laws and regulations.
The Commission on Human Rights held its first session from 27 January to 10 February 1947, at which a drafting committee, consisting of seven Member States, was established. At its first session, held from 9 to 25 June 1947, the Drafting Committee of the Commission decided to prepare two documents: a preliminary draft of a declaration or manifesto setting forth general principles of human rights; and a draft outlining convention on those matters which the Committee felt could be formulated as binding obligations. The report of the Drafting Committee (E/CN.4/21) was submitted to the Commission on Human Rights for consideration at its second session, held in December 1947. The Commission endorsed the recommendation by the Drafting Committee to draft two separate documents, as many Governments were prepared to accept a declaration if it were to precede and not replace a convention. Efforts were consequently concentrated on a draft declaration, leading to the adoption of the Universal Declaration on Human Rights by resolution 217 A (III) of 10 December 1948. (See Universal Declaration on Human Rights). In the same resolution, the General Assembly requested the Economic and Social Council to ask the Commission on Human Rights to continue to give priority in its work to the preparation of a draft covenant on human rights and draft measures on its implementation (resolution 217 E (III)). The Economic and Social Council transmitted this resolution of the General Assembly to the Commission on Human Rights by resolution 191 (VIII) of 9 February 1949.
A first draft convention was prepared by the Commission on Human Rights during its sixth session, in 1950, and a report was submitted to the Economic and Social Council for consideration at its sixth session (E/1618 and Corr. 1 and Add. 1). In addition, the Council had before it two reports which the Commission had requested the Secretary-General to prepare (E/1721 and Corr. 1, and E/1732), dealing with federal and colonial clauses, and the possibility for the proposed Human Rights Committee to seek advisory opinions from the International Court of Justice. In resolution 303 I (XI) of 9 August 1950, the Council concluded that further progress could not be made until policy decisions were taken by the General Assembly on certain matters, including the general adequacy of the first draft and the articles relating to its implementation, the desirability of including articles on economic, social and cultural rights, and the desirability of including special articles relating to federal states and to Non-Self-Governing and Trust Territories. The General Assembly considered these topics at its fifth session, and adopted resolution 421 (V) of 4 December 1950 deciding that the covenant should include economic, social and cultural rights as well as a clause with regard to its territorial application, and that the draft articles proposed by the Commission on Human Rights should be revised and additional rights be added. Furthermore the Commission was asked to consider provisions relating to federal states and petitions with regard to alleged violations of the Covenant. The resolution was transmitted to the Commission on Human Rights by the Economic and Social Council by resolution 349 (XII) of 23 February 1951.
At its seventh session, in 1951, the Commission on Human Rights, assisted by representatives of the International Labour Organization (ILO), the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the World Health Organization (WHO), completed its draft on economic, social and cultural rights (see report of the Commission, E/1681, and Corr. 1, Corr. 2 (French only), Corr. 3 and Corr. 4 (Spanish only)). The report was submitted to the Economic and Social Council, which discussed the draft articles and measures for its implementation at its session of the same year. In view of the discussions, by resolution 384 (XIII) of 29 August 1951, the Council invited the General Assembly to reconsider its decision to include in one covenant provisions on both economic, social and cultural rights, and civil and political rights. At the sixth session of the General Assembly, in 1951, the question of the Draft Covenant on Human Rights and measures of implementation was discussed at forty meetings of the Third (Social, Humanitarian and Cultural) Committee and subsequently at two plenary meetings of the General Assembly. After continued discussions in plenary, the General Assembly requested, in resolution 543 (VI) of 5 February 1952, contrary to its previous decision, that the Commission on Human Rights draft two separate Covenants, to be submitted simultaneously for consideration by the General Assembly. As further requested by the General Assembly in resolution 549 (VI) of 5 February 1952, the Economic and Social Council held a special session on 24 March 1952, and transmitted the above recommendations to the Commission on Human Rights.
The Commission on Human Rights continued its work on the preparation of the two draft covenants at its eighth and ninth sessions, but was not able, in the available time, to carry out the instructions of the General Assembly. At its tenth session, in 1954, it however completed the two draft covenants (see the report of the Commission, E/2573). Without dealing with the substance of the drafts, the Economic and Social Council adopted resolution 545B I (XVII) on 29 July 1954, transmitting the report of the Commission to the General Assembly. At the ninth session of the General Assembly, in 1954, the item was again allocated to the Third Committee which began a first reading of the draft covenants.
Preparation of the draft covenants continued in the Third Committee during the tenth to the seventeenth sessions of the General Assembly, from 1955 to 1962. In 1963, the final substantive articles were adopted (see the report of the Third Committee to the General Assembly, A/5655). On 12 December 1963, the General Assembly invited all Governments to consider the text of the articles adopted by the Third Committee and decided to make a special effort to adopt the entire texts, including the final clauses, of the draft covenants at its nineteenth session, the following year (resolution 1960 (XVIII)). Owing to the special circumstances prevailing then, work on the covenants could not however be continued in 1964 and, at the twentieth session, in 1965, the General Assembly decided to defer the topic due to its heavy agenda (resolution 2080 (XX) of 20 December 1965). At the twenty-first session, in 1966, the Third Committee completed the drafting of the covenants, adopting final clauses and articles relating to measures of implementation. The two draft Covenants and the Optional Protocol to the Covenant on Civil and Political Rights were submitted to the General Assembly (see the report of the Third Committee to the General Assembly, A/6564). After discussions in plenary, the General Assembly adopted unanimously the recommendation of the Third Committee in resolution 220 A (XXI) of 16 December 1966, the three instruments being annexed thereto. In separate votes, the General Assembly adopted the Covenant on Economic, Social and Cultural Rights, with a vote of 105 to 0, the Covenant on Civil and Political Rights, with a vote of 106 to 0, and the Optional Protocol to the Covenant on Civil and Political Rights with a vote to 66 to 2, with 38 abstentions.
The three instruments were opened for signature on 16 December 1966. In accordance with their respective provisions, the International Covenant on Economic, Social and Cultural Rights entered into force on 3 January 1976 and the International Covenant on Civil and Political Rights, together with its Optional Protocol, entered into force on 23 March 1976.
Text of the Covenant
Selected preparatory documents
Report of the first session of the Drafting Commission of the Commission on Human Rights, held from 9 to 25 June 1947 (E/CN.4.21, 1947)
The Covenant entered into force on 23 March 1976. For the current participation status of the Covenant, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see: