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International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
Site: Bahrain Polytechnic Moodle
Course: GS5102 - Introduction to Human Rights - Labour Law
Book: International Covenant on Civil and Political Rights
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Printed by: Jumana Abdulla
Date:
Monday, 30 October 2023, 11:39 AM
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International Covenant on Civil and Political Rights
Description
Overview
A detailed examination of some human rights enshrined in the ICCPR.
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Table of contents
Introduction
Right to life
Obligation of the State to take positive measures to ensure the right to life
Genocide and Armed Conflict
Prohibition of arbitrary deprivation of life
Death Penalty
Right to Freedom of Movement
Liberty of movement and freedom to choose one’s residence (para. 1)
Freedom to leave a country and liberty of emigration (para. 2)
Limitations on the freedom of movement, residence, travel and emigration
Right to Privacy
Obligation on the State to take positive measures to protect the right
Scope of application
Limitations
Rights of the Child
In General
Special rights
To Sum Up
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Introduction
This session aims to explain some of the subjective human rights enshrined in the two Covenants (ICCPR and ICESCR).
The Covenants are treaties and their content is binding for States parties. Their content also reflect international
customary law. Moreover, these two treaties extend the rights contained in the Universal Declaration and are important
starting points for the drafting and adoption of other treaties (regional treaties, or treaties dedicated to specific
themes like the protection of women, rights of the child, etc.)
This session will look at on some of the rights in the International Covenant on Civil and Political Rights (ICCPR). We
could not possibly look at all of the instruments (Treaties, Covenants, etc.) that have been mentioned but it is
important to look more closely at some of the rights to gain a greater understanding of International Human Rights Law
and the application of subjective rights.
This session will start with the right to life because it is the most fundamental of all rights. Then, the right to freedom
of movement and the right to privacy. Finally, we will look at the right of protection for the child.
The Right to
The Right to Freedom of
The Right to
The Right of Protection for
Life
Movement
Privacy
the Child
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Right to life
It is said that the right to life can be called the supreme human right, since without a guarantee of this
right, all other rights of the human being would have no meaning. The right to life is expressed in Article
6 of the ICCPR.
1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only
for the most serious crimes in accordance with the law in force at the time of the commission of
the crime and not contrary to the provisions of the present Covenant and to the Convention on
the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out
3.
pursuant to a final judgement rendered by a competent court.
When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment of
4.
5.
6.
the Crime of Genocide.
Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
Sentence of death shall not be imposed for crimes committed by persons below eighteen years of
age and shall not be carried out on pregnant women.
Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment
by any State Party to the present Covenant.
Activity One will help you understand the supreme Human Right - Article 6 of the ICCPR.
Activity One
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Obligation of the State to take positive measures to ensure the right to life
States must protect the right to life by law (see para. 1 of Article 6). This means, for example, that
national criminal law must include consequences (a punishment of some kind) for murder or
manslaughter. States need to protect life against threats like malnutrition or life-threatening illnesses.
Moreover, they have the duty to prevent war, genocide and other forms of mass violence. With regard to
persons under arrest, States have the duty to provide food or medical treatment, and to prevent suicide.
Malnutrition
Life-threatening
illnesses
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Mass violence
Under arrest
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International Covenant on Civil and Political Rights
Genocide and Armed Conflict
Genocide is understood as the physical and cultural extermination of a group. History gives us many
examples of attacks on whole groups of people - in Europe, over seventy years ago, the Jewish and
Romany populations were the victims of a mass extermination policy by the Nazi regime; more recently
the Tutsi people were attacked by the Hutu in Rwanda.
Art. II of the Convention on the Prevention and Punishment of the Crime of Genocide provides a definition of
genocide.
[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.
Today, genocide has been recognized as an international crime. As stated in Art. 6, para. 3, ICCPR, States are expected
to respect the terms of the Convention against Genocide, to protect people against the risk of genocide, and, of course,
to not perpetrate genocide.
Armed conflicts, whether international or non-international, still represent the greatest
threat to human life. Does this mean that every time someone is killed during an armed
conflict or war, that this is a violation of the right to life? Not necessarily. Armed
conflicts are still governed by International humanitarian law. Killing combatants (during
international armed conflicts) and persons involved in the conflict (during noninternational armed conflict) is probably not a violation of the right to life (as long as the
rules and principles of the international humanitarian law are kept). However, killing non-combatants, wounded
soldiers, Red Cross/Red Crescent/Red Crystal workers would probably be a violation of the right to life and a violation
of the international humanitarian law.
Now complete three questions in Activity Two about Genocide and Armed Conflict.
Activity Two
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Prohibition of arbitrary deprivation of life
Please read the following passage.
As stated in Art. 6, para. 1, of the ICCPR, ‘no one shall be arbitrarily deprived of his life’.
The term ‘arbitrarily’ contains elements of unlawfulness and injustice, as well as those of
capriciousness and unreasonableness. So, for example, the intentional killing, without
warning, by a security agent, of a kidnapper who actually didn’t try to escape and was
unarmed, instead of catching and arresting them, is a disproportionate and unreasonable
behavior that constitutes an arbitrary deprivation of life, hence a violation of the right to
life.
This passage may be a little tough going. Please complete the following activities to help you understand some of the
terminology that will continue to be used. Hint, remember the definitions in Activity Three when you do four.
Activity Three
Activity Four
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Death Penalty
Internationally, more and more countries are moving towards not having the death penalty. For example,
the Second Optional Protocol to the ICCPR says that States parties are under a strict and unlimited
obligation not to execute anybody who has been sentenced to death, to abolish the death penalty in their
laws, and not to reintroduce capital punishment in the future. However, under Art. 6 of the ICCPR, the
death penalty is not unlawful. What may be unlawful is the way death penalty is implemented or performed.
The death penalty is subject to limitations. Read these limitations below
- Nulla poena sine lege - the provision in Art. 6, para. 2, of the ICCPR states that a death sentence may
only be given when the law in force at the time of the violation allows it. If there was no death penalty
law when the crime was committed, the death penalty cannot be given.
- A law imposing the death penalty must not contradict other provisions of the ICCPR or the Genocide
Convention. This means that death penalty must not be given in a cruel or inhuman manner.
Additionally, it should not fall within the meaning of Art. 7 (the prohibition of torture) nor any form of
genocide done by way of ‘legal’ sentences of death.
- The death penalty may be imposed only for the most serious crimes (e.g. intentional killings or
assassinations).
- The death penalty may only be given after the final judgment is given by a competent, impartial and
independent court. The court case also needs to be public, the accused is presumed innocent until
proven guilty, and that the minimum rights of the accused are observed. Additionally, the accused must
be given the opportunity to appeal their conviction.
- According to Art. 6, para. 5, the death penalty is prohibited for persons under the age of 18. This
means age at the time the crime was committed, not the accused current age. So a person under the
age of 18 who commits a crime punishable with the death penalty may not be sentenced to death even
though they are 18 or older at the time the sentence is given. Also, the death penalty cannot be carried
out on pregnant women.
- Even after the judgment has been handed down, execution may not take place immediately. Art. 6,
para. 4, allows all persons sentenced to death the right to seek pardon or commutation (changing the
punishment to a less severe one) of the sentence. Pardons are usually given by the Head of State but
commutation may come from an appeal.
- Finally, if State A requests for the accused person to be sent or returned to that country, and there is
a chance that they will be executed in violation of the points made above, then State B (the state where
the accused is currently living or held in prison) is now not allowed to send that person to State A.
Activity Five
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International Covenant on Civil and Political Rights
Right to Freedom of Movement
The right to freedom of movement is enshrined in Art. 12 of the ICCPR.
This article contains the following statements.
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
Aliens (tourists, migrant workers, business men and refugees to arrive legally) in the country are guaranteed the same
rights as a local citizen in terms of the rights in the Covenant. However, the decision about how long they can stay and
if they should even be there remains the decision of the individual state.
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Liberty of movement and freedom to choose one’s residence (para. 1)
Article 12 (para. 1, ICCPR) guarantees the right to move about and choose a place to live within a
country, and is available to all persons ‘lawfully within the territory of a State’. There are some
limitations contained in para. 3, but essentially nationals and aliens can move about a country
freely.
Nationals of a State party have an absolute right of residence in the country. This is different for aliens. They do not
have an absolute right of entry to a country and therefore do not have automatically the right
of residence (living in the country) – they can ask for residency permits or visas which can be
refused. States can make their own decisions concerning who can enter their country. But
once they have allowed the aliens in, then they are guaranteed the same rights as nationals.
Below are some other reasons aliens can claim residency in a country.
- According to the 1951 Geneva Convention on Refugees, a refugee coming from a neighboring State
who was very badly treated there may not be refused entry at the border but rather must be granted –
at least temporary – residency.
- States parties are prevented from sending persons back to their home countries where it is believed
that they face the real risk of being subjected to torture or the death penalty.
- Also, in order to protect families (see Arts. 17 and 23) States parties are called not to expel one or
more members of an alien family.
An alien is entitled to the right to freedom of movement and residency when they have a residency permit from an
official source. This is sometimes called a 'visa.' The residency of an alien is therefore lawful when they have entered
the country with a valid residency visa. An alien who has entered the State illegally, but who has since gotten the
correct visa, must be considered to be lawfully within the territory. Lawful residency becomes unlawful when a time
limit on residency expires or when there is a valid reason for the visa to be stopped.
States must also work to protect the right to freedom of movement and residence from both public and private
interference. For example, states need to protect aliens from being forced out should armed conflict arise in the
country.
After reading this page, complete the True or False questions in Activity Six.
Activity Six
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Freedom to leave a country and liberty of emigration (para. 2)
Paragraph 2 of Article 12 guarantees the right of all persons to leave every country, including their
own, subject to the limitations set down in para. 3 (next page).
This applies to both long and short stays overseas Freedom to travel abroad for the purposes of tourism, visiting family, study, etc.
Freedom to emigrate (move to another country to live)
The right to leave their own country creates an obligation for the State to issue passports
or travel documents to its nationals. States that deny their nationals a passport violate
Article 12, para. 2.
Additionally, freedom to emigrate is available to everyone, both nationals and aliens. Of
course, the freedom of children to leave or emigrate is restricted, at least up to a
certain age, due to parental authority.
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Limitations on the freedom of movement, residence, travel and emigration
Restrictions on the freedom of internal movement, residency, travel abroad and emigration are only
permissible in four cases. if restrictions:
i. Are provided by law
Restrictions must be provided by a parliamentary act or an unwritten norm of common law, which must be made
available to all the people in the country. The restriction imposed by law must be reasonable and not abusive. For
example, a law that prevents all blue-eye citizens from moving from one place to another is an unreasonable law.
ii. Are consistent with other rights recognized in the Covenant
A law that puts restrictions on the freedom of movement must be fair and must not contradict other rights enshrined in
the Covenant. For example, Art. 47 in the ICCPR states that "[n]othing in the present Covenant shall be interpreted as
impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources." This
means that freedom of movement can never be restricted by preventing citizens from using their own money for
traveling.
iii. Serve one of the purposes for interference listed in the provision
Restrictions on the freedom of internal movement, residency, travel abroad and emigration must serve one of the
following purposes.
-
To protect national security - national security is endangered only in serious cases of political or
military threat to the entire nation. So, for example, a State may bar access of non-authorized persons to
the military’s security zones or limit the freedom of active members of the military to move about or
leave the country.
-
To protect public order - restrictions in this case are associated with the lawful removal of
personal freedoms and all traffic laws. An example of this might include not allowing construction in some
areas to protect the environment. Permissible restriction on freedom of movement can also be done for
safety reasons. For example, police can prevent people from going into earthquake zones. A limited
night-time curfew can also be justified for the sake of public order.
However, the exception must not become the rule. For the Human Rights committee, excessive fees and
unreasonable delays when applying for travel documents, restrictions on family members traveling
together, the need for supportive documents from employers or family members, the requirement of a
certain amount of money or a return ticket, the requirement of an invitation from the destination or from
people living there, guarantees or financial payments in order to obtain a permit to leave the country are
violations of Article 12.
-
To protect public health - a typical case for restricting freedom of movement are the quarantine measures to
prevent the spread of infectious diseases. States may restrict access to certain areas as a result of a catastrophe or
where health dangers exist (e.g. close to a nuclear power plant) and to areas that are important for ensuring public
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health (e.g. lakes that serve as water conservation areas).
-
To protect public morals - a typical case for the application of this provision is not allowing women into shisha
coffee shops to avoid the mixing of genders.
-
To protect the rights and freedoms of others - here freedom of movement can be restricted to protect the
right to privacy and private property of others. Also, to protect helpless or dependent persons as well as minorities,
States may restrict the freedom to leave the country of those persons who are attempting to avoid their duty to support
their children. Restriction can also be imposed on persons who are a threat to the public, like convicted criminals or
persons with infectious diseases.
iv. Are necessary for achieving this purpose
Restriction to freedom of movement is possible only when such a restriction is necessary for achieving one of the
purposes listed under iii).
In order for a State to make the decision to make a restriction, they must carefully weigh up the proportionality. This
means, they need to decide if what they are doing balances equally with the rights that they are taking away from
people.
Activity Seven will help you understand and remember some of the things talked about on the last two pages.
Activity Seven
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International Covenant on Civil and Political Rights
Right to Privacy
The right to privacy is enshrined in art. 17 of the ICCPR.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, or
correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The right to privacy guarantees the respect for the individual existence of every human being. Each person has the right
to exist physically, spiritually and legally and to respect for their peculiar, individual nature, appearance, honour and
reputation.
Activity Eight is designed to help you with the language again. Make use of the dictionary on the right? You may prefer
to complete Activity Nine instead...
Activity Eight
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Obligation on the State to take positive measures to protect the right
Privacy needs to be protected against all forms of attack and interference. For example access to
personal data and secret surveillance measures by private companies is a violation of the right to
privacy. This right must be protected by the national law.
The government needs to take positive action to protect the right to privacy.
Positive action means to take steps to help or encourage certain groups of people with
different needs. Therefore the government needs to write into law regulations that will
protect individuals from others, such as organizations or criminal bodies. This is
especially true in the case of the elderly or children. Another example may be when
States parties have the obligation to ensure that prisoners have a right to
communication with the outside world and to provide them with a minimum of privacy,
respect and protection from possible negative situations with other prisoners or even prison guards.
Further, States have a special duty to ensure a right to communication between children and both parents after divorce
and the break-up of the family.
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Scope of application
… no interference with [their] privacy…
The right to privacy covers the identity, integrity, intimacy, autonomy, communication of individuals.
Identity - This includes your name, your appearance, clothing, hair and beard style, your gender,
genetic code (DNA), feelings and thoughts, your past, as well as beliefs or other convictions.
Therefore, forced clothing or hairstyle rules, forced name changes, the forceful influencing of
thoughts and feelings (brain washing etc.) represent an interference with a person’s privacy.
Integrity - Examples of this violation of personal integrity include the withdrawal of blood samples without a proper
reason or legal basis, medical treatment without consent or when the patient does not want it. However, such
interference with personal integrity is allowable when it is in accordance with the national legal system and is not
arbitrary. For example, an emergency medical operation to save the life of an unconscious person do not represent a
violation of art. 17.
Intimacy - Intimacy refers to being able to keep your private characteristics, actions or data from public viewing. Some
personal information is so private (personal photos, personal writings, etc) that their publication by someone else,
without the consent of the owner, are a violation of Art. 17. Some people have jobs where they have access to other
peoples' personal information such as doctors or insurance companies and so are not allowed to give that information to
anyone else.
Autonomy - Privacy also allows people to be themselves, free from interference from the government or other bodies.
However, this is only the case when what you are doing does not interfere with other peoples' rights. States can also
interfere here when actions are different from social norms or are causing self harm. Examples of this include laws
requiring the use of seat belts, the banning of drugs or the prohibition of alcohol.
Communication - the right to privacy also protects the right of communication. People have the right to develop
relationships with other human beings for emotional development and fulfillment. For example, children also have the
right to maintain personal relations, direct communication and regular contact with their parents after divorce. If the
right of communication between one parent and their children is denied by the other parent, States have an obligation
to step in and make communication and contact possible.
… no interference with [their] family…
According to Art. 17, para. 1 of the ICCPR, ‘no one shall be subjected to arbitrary or
unlawful interference with [their] … family’. In deciding what makes up a 'family,' you
need to look at the customs, traditions and laws of each individual country. For example,
the family unit in Europe is understood more narrowly than the extended family of
traditional African societies.
Some criteria are essential for the existence of a family. There needs to be a blood relationship and the documentation
that goes with marriage or adoption. The family also needs to live together and have evidence of a regular
relationship. The Human Rights Committee rejected a Polish woman's application to apply for entry visas for her
daughter and grandson to come to Canada. The committee felt that because they had lived apart for 17 years, they
could not be defined as a 'family.'
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Sending illegal immigrants back to their home country, who have not committed any crime except entering the country
illegally and have members of a family in the new country, is a violation of Article 17. Indeed, immigrants who stay for
a long time and develop connections like making their own family or business ties are protected under Article 17. This
can only be overturned in the case of strong evidence of anti-societal actions such as being a member of a terrorist
group.
Finally, States cannot prevent divorced people from starting a new family as this is also viewed as interference with the
family and so not allowed.
… no interference with [their] correspondence…
Correspondence means all forms of communication over distances: written letters, telephone, email, etc. The
protection of correspondence is talking about its security. States have a duty to make sure that all
forms of mail get to the receiver without inspection by others. This means that the States must
have legal measures in place to protect communication, especially when private companies operate
the communication systems.
Censorship, inspection of (or listening to) private correspondence because the States needs to catch
criminals or prevent terrorism is allowed when an appropriate court gives their permission after hearing all of the facts.
Also, the correspondence of prisoners can be read for the purpose of preventing future crimes etc.
… no attacks on honour and reputation…
Article 17 prohibits people from making personal attacks on others when they do not have the
complete truth. Talking negatively about other people makes others think badly of that
person, and so destroying their reputation. If the information is incorrect, then this is banned
by Article 17. However, if the comments made are true, then this does not fall within the
protection of Article 17.
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Limitations
Article 17 of the ICCPR does not contain a limitation clause allowing for restrictions or limitations in the interest
of public order or similar purposes.
However, it does state that "no one shall be subjected to arbitrary and unlawful interference with [their] privacy,
family, or correspondence, nor to unlawful attacks on [their] honour and reputation." If we look at the meaning of
this from the other side, we could say that interference with privacy, family and correspondence is allowed when, and only when, that
interference is non-arbitrary or lawful; and that attacks on honour and reputations are allowed when lawful.
Unlawful interference means that which conflicts with the national legal system and international law. Arbitrary interference contains
elements of injustice, discrimination, unpredictability and unreasonableness. These can therefore be hard to define and often must be judged on
individual merits.
Unlawful interference?
Arbitrary interference?
Often, violations of Article 17 are made together with violations of other rights. For instance, in Angel Estrella v.
Uruguay, the Human Rights Committee stated that the level of censorship of communcation to and from in the
‘Libertad’ prison in Montevideo was a violation of Article 17 and Article 10 of the ICCPR (right of prisoners to be treated
with humanity and dignity).
There has been a lot of information provided concerning the Right to Privacy. Please complete Activity Nine to help you
remember it for the test.
Activity Nine
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Rights of the Child
Article 24 of the ICCPR contains the rights of the child.
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right to such measures of protection as are
required by [their] status as a minor, on the part of [their] family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
These rights guarantee a right to protection by the child’s family, the society and the State.
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In General
According to para. 1 of Article 24, the State must offer its protection to all the children within its
borders. How they do this is up to them. They may offer support to the family, or through support for
facilities for children (kindergarten, orphan’s homes, etc.) or through other measures that they think
the children need.
Protection means that the State must prevent the child from suffering from any kind of abuse or neglect by any third
parties - this includes parents. It also means they must make laws so that the people know what to do when situations,
such as the death of the parents or disabilities etc., happen in the child's' life.
However, Article 24 does not define which protective measures are required by a child’s status as a minor. We can
conclude from what states do that such measures may include the following.
-
Institutional protection
-
Family law - law regulating relations between parents and
children, including the law of custody and support, understanding that
deal with inheritance, guardianship and tutelage, etc.
-
Special criminal law protection - rules relating to the
mistreatment and/or killing of children which require special
punishments; the creation of a legal age; special protection for young people in criminal
trials, a different set of rules for the pre-trial detention and imprisonment.
-
Ensuring adequate nutrition, housing, recreation, medical care, security and
education.
-
Ensuring the respect of the rights in the Convention on the Rights of the Child -
These include the right not to be separated arbitrarily from their parents, the right to family
reunification, the right to benefit from child-care services, the right to personal liberty, the
protection of children from violence, abuse, neglect, maltreatment, economic exploitation,
child labour, etc.
With children who are more in need (orphans or children separated from their
parents, refugee children, children with disabilities, minority children, children in
armed conflict), special protection is given.
Children must be treated equally. When children do not receive the same treatment
because race, religion or any other reason, this is a violation of Article 24. For
example, any law where the age limit was different based on gender would be in
violation of paragraph 1 of Article 24.
Article 24 does not contain a legal definition of the term child. However, according to many experts and the general
comments of the Human Rights Committee, the protection of Article 24 applies to every human being below the age of
18 years unless, under the domestic law, the child is considered an adult at an earlier age.
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International Covenant on Civil and Political Rights
Special rights
Paragraphs 2 and 3 of Article 24 provide for two special rights of the child.
Registration and name - each newly born child has the right to immediate registration of
their name in a State recognized registrar of births. It is only after registration that the
existence of a newborn child is legally recognized. This
right is closely related to the right of every person to
their own identity, which follows from the protection of
privacy (Art. 17) and to the right to recognition as a
person before the law guaranteed (Art. 16).
The right to a name covers not only the family name
(given according to domestic law and local customs),
but also a first name identifying the child. This given name is chosen by the parents.
However, registration is a duty of the state in the country that the child is born.
Nationality - Article 24 (para. 3) states that children have a right to a nationality. How this
happens and what documentation is needed is up to the individual States. Further, when a
child is found with no nationality and we do not know who their parents are, this paragraph
provides an option by saying that the child is to be given citizenship of the country where
they were found.
Now that you have read the information on the rights of the child, please complete Activity Ten.
Activity Ten
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International Covenant on Civil and Political Rights
To Sum Up
Finally, just to help you understand, complete the following exercise.
Activity Eleven
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