The year 2016 marks the 50th anniversary of the two covenants, considered the bedrock of the international human rights treaty system as subsequent treaties generally refine rights contained in the covenants. The history of the drafting of the two covenants was greatly influenced by the Cold War and the different conceptions of the nature and essence of human rights. The initial idea of bringing the two sets of rights together in one document appeared untenable, and the UN General Assembly in early 1952 decided to embark on two covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Civil and political rights could be considered as law to be implemented immediately, while economic, social, and cultural rights are understood in a more flexible way, as expressed in Article 2 (1) ICESCR: “Each State party to the present Covenant undertakes to take steps […] with a view to achieving progressively the full realization of the rights recognized.”
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International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights, adopted by the General Assembly on 16 Dec 1966 by Resolution 2200 A (XXI); see in this connection Human Rights Council Resolution HRC/RES/29/1 adopted on 2 July 2015, marking the 50th anniversary of the Covenants, henceforth referred to as the Council.
General Assembly Resolution 543(VI), 04 Feb 1952, GAOR, 6th Session, Supplement, paras 20, 36. Henceforth ICCPR and ICESCR, respectively.See his contribution to the second world conference on human rights entitled: “The Importance of the Inter-play between Economic, Social and Cultural Rights and Civil and Political Rights,” in UN Doc. A/CONF.157/PC/66/Add.1, 25–26; see for a more optimistic view Abram (1991), p. 69.
UN Doc. E/1993/22, 83 para 5.General Assembly Resolution 32/130, adopted 16 Dec 1977; see also para 7 of the preamble to Council Resolution 29/1, referred to in n 1 above.
Alston (1982), pp. 307–322. General Assembly Resolution 63/117, 10 Dec 2008; see Pinto de Albuquerque (2010). The Committee under the ICESCR. Communication 1/2013, Doc. E/2015/22; E/C.12/2014/3, para 66. Henceforth the “Committee”; see for a general overview McGoldrick (1994), and Nowak (2005).Its first session took place on 21 Mar 1977. The latest revision of its rules of procedure was adopted at its 103rd session in Oct 2011, Doc. CCPR/C/3 Rev. 10.
ECOSOC Resolution, 1978/10, 1.ECOSOC Resolution 1985/17, 28 May 1985, ECOSOC Reports, 1985, Supplement 1, 15–16; the human rights treaty body has up to now held 60 sessions.
Rules of procedure adopted at its third session in 1989, Doc. E/C 12/1990/4/Rev. 1; the rules of procedure for the Optional Protocol were adopted at its 49th session in Oct 2012, Doc. E/C 12/49/3. The Optional Protocol entered into force on 5 May 2013.
Henceforth VCLT; see also, e.g., the General Comment (henceforth GC) adopted by the Committee on the Rights of the Child at its 34th session in Oct 2003, Doc. CRC/GC/2003/5, paras 14–15, with respect to reservations to the Convention; see also Art 51 (2) CRC.
The Optional Protocol procedure under ICESCR is still in its infant stage as consideration of communications only started at its 53rd session in 2014. Until now, five communications have been registered, and one has been declared admissible, communication 1/2013, see n 10 above.
Communication 118/1982, para 6 (3). The petition was nevertheless considered inadmissible ratione materiae, because the right to strike was not protected by ICCPR, but rather by ICESCR. Five members disagreed and submitted dissenting opinions, arguing that the right to strike could fall under Art 22 (2) of the ICCPR.
IACtHR, Velásquez Rodríguez, Series C No 4, para 188. In this sense also Tomuschat (2012), p. 643, para 15.On the reporting obligations of states see e.g. Note HRI/MC/2016/2 by the OHCHR Secretariat, “Timely, late and non-reporting by States parties to the human rights treaty bodies,” at the Twenty-eighth meeting of Chairs of the human rights treaty bodies, 22 Mar 2016.
GC 1, adopted 28 July 1981, 13th session.GC 2 (reporting guidelines), para 3. See the words in Art 2 (1) ICCPR “to respect and to ensure […] within its territory and subject to its jurisdiction”; as to that wording see also, e.g. the Convention on the Rights of Migrant Workers and their Families (CMW) states in Art 7 “to respect and to ensure […] within their territory or subject to their jurisdiction” (emphases added); the Convention on the Rights of the Child (CRC) provides “states parties shall respect and ensure the rights set forth in the present convention […] within their jurisdiction without discrimination of any kind”; see also CERD General Recommendation No 23 concerning indigenous peoples of 18 Aug 1997, para 4, where state parties are requested to ensure the rights pertinent to that community.
GC 3 adopted at the same meeting. See infra, n 31 and accompanying text. GC 1 adopted at its third meeting in 1989. Adopted at its next session in Feb 1990. Ibid, para 5.General Recommendation 28 on the obligations of State parties, Doc. CEDAW/C/GC.28, adopted at its 47th session in Oct 2010, para 9; see also the GC of the Committee on the Rights of Persons with Disabilities, adopted at its 11th session in Mar–Apr 2014, Doc. CRPD/C/GC.1, para 24, where it reads: “States parties have the obligation to respect, protect and fulfill the rights of persons with disability.” In addition, in GC 16 adopted by CRC in 2013 on states obligations regarding the impact of the business sector on children’s rights, the committee reported that under international human rights law there exist three obligations on states parties: to respect, to protect and to fulfill human rights. In addition, states have an obligation to provide effective remedies and reparation for violations of the rights of the child, including by third parties such as business enterprises, Doc. CRC/C/GC/16, 17 Apr 2013.
Doc. CEDAW/C/GC/28, para 11.Adopted 29 Mar 2004, where it reads in para 8: “However, the positive obligations on states parties to ensure Covenant rights will only be fully discharged if individuals are protected by the states, not just against violations of Covenant rights by its agents […].”
General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, Adopted on 29 Mar 2004, para 8.
GC 18, adopted in Nov 1989. GC 20, adopted in July 2009. Adopted at its 94th session in Oct 2008, see in particular paras 10, 14–15, 18 and 20.In many cases, however, the state party does offer a remedy to victims and consider it a positive obligation towards compliance with the optional protocol; see e.g. communication 163/1983, Herrera Rubio v Colombia, where the Committee in its views stated that the state party was under the obligation in accordance with the provisions of Art 2 of the Covenant “to take effective measures to remedy the violation and to ensure that similar violations do not occur in the future.” Views of 2 Nov 1987, para 12 and the state party followed suit. See also the death row cases, communication 232/1987, Daniel Pinto v Trinidad and Tobago, para 13 (2), and communication 250/1987, Carlton Reid v Jamaica, para 12 (2), where two prisoners had been sentenced to death under an irregular procedure and were subsequently released.
Communication 580/1994, HRCtee 2002 Report, Vol II, Annex IX, Section A para 10 (9) and 10 (10). Boerefijn (1999), especially chapter XIV, General Comments, 285–302. Tomuschat (2008), p. 189; see also Alston (2001), pp. 763–776, and van Aggelen (2001), pp. 636–637. Statement of 30 Oct 1980, Report of the HRCtee, Doc. A/36/40 Supplement, 101.See ILA Report (Part 2), The Domestic Implementation of Judgments/Decisions of Courts and other International Bodies that Involve International Human Rights Law, in this Volume.
Final Report on the Impact of Findings of the United Nations Treaty Bodies, Report of the Seventy-First Conference, Berlin 2004, 621. The interim report presented in New Delhi requested the committee to discuss in its final report inter alia: the use of treaty body output by national courts and tribunals as well as international courts and tribunals; illustrative examples of treaty body output by other courts and tribunals. A subsequent expert meeting in Turku recommended in addition that the final report should consider how treaty body outputs would fit into the traditional approaches to and sources for the interpretation of treaties as well as the implementation of treaty body output in individual cases and their increased use by international and national bodies.
Ibid, paras 8–16. A remarkable example can be found in the case Ahani v Canada (Atty. Gen) where in 2002 the Court of Appeal’s Judge Laskin, who later sat on the Canadian Supreme Court, commented on the status of the ICCPR and its optional protocol. The judge reported that Canada in signing the Optional Protocol had not agreed to be bound by the final views of the Committee, nor did it even agree that it would stay its own domestic procedures until the Committee had given its views. He concluded therefore that neither the Committee’s views nor its interim measures were binding on Canada as a matter of international law, much less as a matter of domestic law. In other words to convert a non-binding request in a protocol which had never been part of Canadian law, into a binding obligation enforceable in Canada by Canadian courts, would be contrary to principles of fundamental justice. (2002)58 OR 3d, 107, Ontario Reports, LEXIS38, paras 32–33. Mr. Ahani subsequently filed a complaint with the Committee, communication 1051/2002. In its views adopted on 29 Mar 2004, during its 80th session, the Committee found inter alia that the deportation of the petitioner back to Iran violated Art 13, in that the state party had failed to provide him with the required procedural protection as the state party did not have compelling reasons of national security to justify expulsion; HRCtee 2004 Report Vol II, Annex IX, Section. BB, paras 10.5–10.8.
ICJ, La Grand (Germany v US), oral pleadings of 13 Nov 2000.For instance former president of the ICJ Rosalyn Higgins, who was also a member of the Committee from 1984 to 1995, in many proceedings refers to treaty bodies views. See also ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (advisory opinion), ICJ Reports 2004, paras 109–112 and 136, where the Court referred to case law of the HRCtee, including concluding observations and GC 27. See ILA Report (Part 1), The International Court of Justice and its Contribution to Human Rights Law, in this Volume, with the ILA Committee’s findings on the ICJ’s dealings the case law of the UN HRCtee and the regional human rights bodies.
See Doc. HRI/MC/2015/2 of 13 Apr 2015 (Implementation by treaty bodies of the conclusions and recommendations of the treaty body chairpersons at their 26th meeting in the framework of General Assembly Resolution 68/268, note by the secretariat), at paras 17–26 and the final report at paras 15–43, giving many examples of domestic implementation and their difficulties, of mainly the views by the Committee under the Optional Protocol procedure.
ILA Final Report 2004 (n 42), paras 175–182. Ibid, para 184. The reference book on the issue, even after more than 30 years, remains Cançado Trindade (1983).In accordance with the adagium “ubi ius ibi remedium est,” see Shelton (2012), especially paras 1–12 and 19.
ESCOR 1988, Supplement 1, 8, 24 May 1988.ICERD: two years; CEDAW, CAT, CRPD: four years; CRC and ICESCR, CMW: five years; but over the years, the relevant committee requests the next submission of a report during the discussion.
See ICJ, Reparation for Injuries Suffered in the Service of the United Nations (advisory opinion), ICJ Reports, 1949, 174–188, at 182; Certain Expenses of the United Nations (advisory opinion), ICJ Reports 1962, 151–168, at 167–168 and the cited jurisprudence. It might be worth to note that the HRCtee in 2000 adopted a procedure where it decided to draw up provisional concluding observations regarding non-reporting states, which were subsequently sent to the state party.
See Bleckmann (2000), pp. 374–377; generally Paust (1988), p. 760; Sloss (1999), p. 129. Doc. CCPR/C/USA/4 and Corr.1, 22 May 2012.Doc. CCPR/C/USA/CO/4, 23 Apr 2014, para 4. The same problem also arises under ICAT as the government, upon ratification, made a declaration that Arts 1–16 of the convention were non-self-executing.
See generally Heyns and Viljoen (2001), pp. 483–535; see also Heyns and Viljoen (2002); Seibert-Fohr (2001), pp. 399–472.
