Monday, 23 September 2024

Covenants of 1966 and optional protocols

Subject
1. International Covenants of 1966

The two major human rights covenants adopted in 1966 are:

1. International Covenant on Civil and Political Rights (ICCPR).

2. International Covenant on Economic, Social and Cultural Rights (ICESCR).
These covenants, together with the Universal Declaration of Human Rights (UDHR), form
what is known as the International Bill of Human Rights.

a. International Covenant on Civil and Political Rights (ICCPR) – 1966

The ICCPR protects fundamental civil and political rights of individuals. It was adopted by
the United Nations General Assembly (UNGA) on 16 December 1966 and came into force
on 23 March 1976.

Key Rights Covered Under ICCPR:

1. Right to Life (Article 6): Protection against arbitrary deprivation of life.

2. Prohibition of Torture and Inhuman Treatment (Article 7): Protection from
torture, cruel, inhuman, or degrading treatment.
3. Right to Liberty and Security (Article 9): Protection from arbitrary arrest and
detention.
4. Right to a Fair Trial (Article 14): Guarantees the right to a fair and public hearing by
an independent tribunal.
5. Freedom of Thought, Conscience, and Religion (Article 18): Ensures the right to
adopt and practice a religion or belief.
6. Freedom of Expression (Article 19): Ensures the right to hold opinions and express
them freely.
7. Right to Privacy (Article 17): Protection from arbitrary interference with privacy,
family, home, or correspondence.
8. Right to Assembly (Article 21): Right to peaceful assembly and freedom of
association.
9. Right to Participate in Public Affairs (Article 25): Includes the right to vote in
elections and have equal access to public service.
Enforcement:

• Human Rights Committee (HRC): The ICCPR establishes the Human Rights
Committee, which monitors the implementation of the Covenant by the state parties.
The Committee also deals with individual complaints under the Optional Protocol to
the ICCPR (discussed later).
b. International Covenant on Economic, Social and Cultural Rights (ICESCR) – 1966

The ICESCR focuses on guaranteeing economic, social, and cultural rights. It was also
adopted by the UNGA on 16 December 1966 and came into force on 3 January 1976.

Key Rights Covered Under ICESCR:

1. Right to Work (Article 6): Protection against unemployment and guarantees the right
to freely choose work.
2. Right to Just and Favorable Conditions of Work (Article 7): Ensures safe working
conditions, equal pay for equal work, and rest and leisure.
3. Right to Form and Join Trade Unions (Article 8): Guarantees the right to strike and
form trade unions.
4. Right to Social Security (Article 9): Guarantees the right to social protection,
including pensions and social insurance.
5. Protection of the Family (Article 10): Protects the family, mothers before and after
childbirth, and children.
6. Right to an Adequate Standard of Living (Article 11): Guarantees the right to
adequate food, clothing, housing, and the continuous improvement of living
conditions.
7. Right to Health (Article 12): Ensures the highest attainable standard of physical and
mental health.
8. Right to Education (Article 13): Guarantees free and compulsory primary education,
and access to higher education for all.
9. Right to Take Part in Cultural Life (Article 15): Protects the right to enjoy cultural
freedoms and scienti c advancements.
Enforcement:

• Committee on Economic, Social and Cultural Rights (CESCR): This body

oversees the implementation of the ICESCR. Unlike the Human Rights Committee
under the ICCPR, the CESCR does not have the power to receive individual
complaints (except under the Optional Protocol to the ICESCR, discussed below).

2. Optional Protocols to the Covenants

The Optional Protocols are additional treaties attached to the covenants. They offer
additional protections, mechanisms, and avenues for enforcement of the rights under the
covenants.

a. Optional Protocol to the ICCPR – 1966

This First Optional Protocol was adopted along with the ICCPR on 16 December 1966 and
allows individuals to submit complaints about violations of their civil and political rights to
the Human Rights Committee.

Key Provisions:
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 • Individual Complaints: Individuals or groups who believe their rights under the
ICCPR have been violated by their country can petition the Human Rights
Committee, provided that all domestic remedies have been exhausted.
• HRC’s Role: The Committee evaluates these complaints and can make
recommendations, but its decisions are not legally binding. Nevertheless, these
decisions often in uence international law and state practices.

b. Second Optional Protocol to the ICCPR – 1989 (Abolition of the Death Penalty)

This Second Optional Protocol aims at the abolition of the death penalty. Adopted by the
UNGA on 15 December 1989, it allows countries to opt for abolishing the death penalty in
peacetime.

Key Provisions:

• Abolition of Death Penalty: States that are party to this protocol commit to
abolishing the death penalty within their jurisdictions, except in wartime (if they have
made a reservation).
• No Execution: Even where the death penalty has not been formally abolished, parties
must refrain from executing anyone after ratifying the protocol.

c. Optional Protocol to the ICESCR – 2008

This Optional Protocol was adopted on 10 December 2008 and came into force on 5 May
2013. It provides an avenue for individuals to le complaints regarding violations of their
economic, social, and cultural rights under the ICESCR.

Key Provisions:

• Individual Complaints: Allows individuals or groups to le complaints with the

Committee on Economic, Social and Cultural Rights (CESCR) if their rights
under the ICESCR have been violated.
• Inquiry Procedure: Allows the Committee to initiate inquiries into widespread and
grave violations of rights in a state party, even if no individual complaint has been
submitted.

1. Optional Protocol to the ICCPR (1966)

Purpose

The rst Optional Protocol to the ICCPR, adopted on December 16, 1966, established a
mechanism for individuals to le complaints against their governments for alleged violations
of their civil and political rights. This protocol made the ICCPR more actionable and
enforceable by enabling individual access to the Human Rights Committee (HRC).

Mechanism
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 • Individual Complaints: Under this protocol, individuals (or groups) can bring
complaints to the Human Rights Committee if they believe their ICCPR rights have
been violated and if they have exhausted all domestic remedies in their home country.
• Role of the Human Rights Committee: The HRC reviews the complaint,
investigates the claim, and issues ndings and recommendations. Though the
Committee’s recommendations are not legally binding, states are expected to respond
and take remedial actions.
Key ICCPR Rights Enforced by the Protocol

The protocol enables enforcement of fundamental civil and political rights aligned with the
UDHR, such as:

• Right to Life (UDHR Article 3; ICCPR Article 6)

• Freedom from Torture (UDHR Article 5; ICCPR Article 7)
• Right to a Fair Trial (UDHR Article 10; ICCPR Article 14)
• Freedom of Thought, Conscience, and Religion (UDHR Article 18; ICCPR Article
18)
Signi cant Cases under the ICCPR Optional Protocol

• Toonen v. Australia (1994): This case established that criminalizing same-sex

relations between consenting adults violated the ICCPR's privacy protections (Article
17) and anti-discrimination provisions (Article 26), advancing LGBTQ+ rights
globally.
• Mukong v. Cameroon (1994): The HRC found that Cameroon violated Mukong's
right to freedom of expression by imprisoning him for criticizing the government.
This case reinforced protections against arbitrary restrictions on free speech.

2. Second Optional Protocol to the ICCPR, Aiming at the Abolition of the

Death Penalty (1989)

Purpose

The second Optional Protocol, adopted in 1989, focuses exclusively on abolishing the death
penalty, except in certain extreme cases, such as wartime. It is based on Article 3 of the
UDHR, which upholds the right to life.

Mechanism

States that ratify this protocol commit to abolishing the death penalty within their
jurisdictions, thereby recognizing that capital punishment violates the inherent right to life.
This commitment reinforces ICCPR Article 6, which safeguards the right to life and
advocates for its legal protection.

Impact and Global Reach

• The protocol has helped accelerate the global trend toward abolition, in uencing
national laws and court decisions in countries moving away from capital punishment.
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 • Countries like South Africa and the Philippines abolished the death penalty partly due
to the in uence of this protocol and its re ection of evolving international standards.

3. Optional Protocol to the ICESCR (2008)

The Optional Protocol to the ICESCR was adopted much later than the ICCPR protocols, on
December 10, 2008, and came into force in 2013. It re ects the growing acknowledgment of
the need to make economic, social, and cultural rights enforceable.

Purpose

The Optional Protocol to the ICESCR enables individuals to seek remedies for violations of
economic, social, and cultural rights—rights that often require proactive measures by states,
such as the right to health, education, housing, and adequate living conditions. This protocol
aligns closely with UDHR rights such as the right to social security (UDHR Article 22) and
right to an adequate standard of living (UDHR Article 25).

Mechanism

• Individual Complaints: Similar to the ICCPR’s Optional Protocol, individuals can

bring complaints to the Committee on Economic, Social and Cultural Rights
(CESCR) if they believe their rights have been violated and domestic remedies have
been exhausted.
• Inquiry Procedure: In cases of grave or systemic violations of ICESCR rights, the
CESCR can initiate inquiries, allowing it to investigate broader issues beyond
individual complaints.
Key ICESCR Rights Enforced by the Protocol

The protocol makes enforceable economic, social, and cultural rights that relate to the
UDHR’s standards, such as:

• Right to Education (UDHR Article 26; ICESCR Article 13)

• Right to Health (UDHR Article 25; ICESCR Article 12)
• Right to Work and Fair Wages (UDHR Article 23; ICESCR Articles 6-7)
• Right to Adequate Standard of Living (UDHR Article 25; ICESCR Article 11)
Signi cant Cases under the ICESCR Optional Protocol

• I.D.G. v. Spain (2015): The CESCR found Spain in violation of the right to adequate
housing after the complainant faced eviction without appropriate judicial
consideration. The case highlighted the enforceability of housing rights under the
ICESCR, re ecting UDHR principles on shelter and dignity.
• J.B. v. Ecuador (2019): The CESCR ruled that Ecuador violated the right to social
security (ICESCR Article 9) by failing to provide disability bene ts, setting a
precedent for enforcing social security rights.

Relation of the Optional Protocols to the UDHR

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 The UDHR was pioneering in its assertion of universal rights but lacked enforcement
mechanisms. The 1966 Covenants and their Optional Protocols were developed to address
this gap, translating the aspirational principles of the UDHR into legally binding
commitments. Speci cally:

1. Accountability: The protocols provide legal avenues for individuals to seek remedies
if their rights are violated, strengthening the UDHR's ideals by creating actionable
paths for justice.
2. Progressive Realization: The ICESCR and its Optional Protocol acknowledge the
need for progressive realization of economic, social, and cultural rights, which the
UDHR also aimed to achieve, as re ected in its aspirational language regarding
standard of living and social security.
3. Right to Life: The ICCPR’s Second Optional Protocol echoes the UDHR’s
af rmation of the right to life by advocating for the abolition of the death penalty.
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