Alexandra Karch

Katareistentie 1 B 49
20740 Turku
Student number: 85715
05.12.2006

The Domestic Status of the ICCPR

in Germany

Specialization Seminar in Human

Rights: The

Covenant on Civil and Political Rights-Trend and

Developments
Professor Martin Scheinin
Fall 2006

Table of Contents

The Domestic Status of the ICCPR in Germany

I.

Introduction

II.

The implementation of the ICCPR in the German legal order

1. The relation between the German legal order and international law

1.1. The German constitution and international law

1.2. The relation between international law and national law in general

1.2.1. Theories

1.2.2. Germany

1.3. The ICCPR

2. The connection between international and national law

2.1. The Human Rights Committees requirements for the

implementation of the ICCPR in the member states

2.2. General Theories

2.3. Germany

2.4. The ICCPR

3. Germany as a state party to the International Covenant on Civil and

Political Rights

3.1. Declarations and Reservations

3.2. Germanys fifth report under Article 40 of the ICCPR

3.2.1. The report

3.2.2. Concluding observations of the Human Rights Committee 11

3.2.3. Comments by the Government of Germany to the
Concluding Observations of the Human Rights Committee
3.3. The implementation of certain provisions of the Covenant

13
13

3.3.1. Article 1

13

3.3.2. Article 3

15

3.3.3. Article 7

16

. Conclusion

19

Bibliography

20

The Domestic Status of the ICCPR in Germany

. Introduction
The International Covenant on Civil and Political Rights (ICCPR), which was adopted and
opened for signature, ratification and accession by the General Assembly resolution 2200A
(XX) on 19.12.1966, came into force on 23.03.19761. The ICCPR is, because of its
extensive content of numerous rights, one of the most important instruments for the
universal human rights protection and has 160 state parties so far.
Germany ratified the ICCPR on 17.12.19732, and in the following years, also the two
additional protocols. On 25.11.1993 the first Optional Protocol to the International
Covenant on Civil and Political Rights (CCPR-OP1) was ratified, while on 18.11.1992,
Germany had already ratified the second Optional Protocol to the ICCPR (CCPR-OP2DP), aimed at the abolition of death penalty.3
Germany, as a state party to the Covenant, was therefore obliged to give effect to the
provisions of the ICCPR in its domestic order, thus to make sure, that its laws and actions
agree with the Covenant.4
The following text will take a closer look at the developments since the ratification and
present state of the domestic status of the ICCPR in Germany.

. The implementation of the ICCPR in the German legal order

Initially, the implementation of the ICCPR in Germany has to be examined.

1. The relationship between the German legal order and international law
When regarding the implementation of the ICCPR, it has to be clarified what the
relationship is between the ICCPR as an international treaty and the German legal order.
Examining this specific relationship, the relation between international law and German
law in general has to be observed.
1.1. The German constitution and international law

http://www.ohchr.org/english/law/ccpr.htm
http://www.ohchr.org/english/countries/ratification/4.htm
3
http://www.unhcr.ch/pdf/report.pdf
4
General Comment 31, paragraph 13
2

First of all, it has to be stated that the Grundgesetz (GG), the German constitution, has
opened the German legal order for international cooperation. In the opinion of the
Bundesverfassungsgericht, it directly aims at maintaining and improving Germanys role
as a peaceful and equal part of the international community in securing worldwide peace
and freedom.5 This also finds its expression in the constitutions preamble, where it is
stipulated that Germany has adopted the constitution animated by the resolve to serve
world peace. Furthermore, pursuant to Article 24 (1) GG, the Federation is allowed to
transfer sovereign powers to international institutions, and pursuant to Article 24 (2) GG, it
is possible to join a system of international mutual collective security. Article 24 (3) GG
determines the possibility of creating a system of international arbitration. Moreover,
Article 25 GG stipulates, the general rules of public international law should form a part of
national law, directly affecting the German inhabitants. Article 26 GG prohibits actions that
could disturb peaceful international relations, especially aggressive war, and limits the use
of weapons in the situation of war (2) . The representation of Germany in international
relations is regulated in Articles 32 and 59 (1) GG. Article 59 (2) GG serves as the general
rule for the transformation of international treaties into national law. Finally, in Article 100
(2) GG, the constitution determines that if doubts exist about whether a rule of public
international law forms a part of national law, and whether the rule directly creates rights
and duties for the individual, the Federal Constitutional Court should be consolidated.
In conclusion, it can be said that international cooperation and international law have
entered into the German Grundgesetz to a broad extent.
1.2. The relation between international law and national law in general
However, the relationship between German law and international law is very controversial.
It is in question whether international law and national law have to be seen as parts of a
uniform legal order, or contrary to that, as two legal orders which are separated from each
other.
1.2.1. Theories
There are two basic theories which are accompanied by a lot of different variations in the
literature. First of all, the Monist Theory has to be mentioned. This theory assumes that
international law and national law are part of the same single legal order.6 According to this
theory, the ICCPR and German national law have to be seen as parts of the same legal
system.
5
6

BVerfGE 63, pp. 343 et seqq. (370)

Malanczuk, Akehursts modern introduction to international law, p. 63

Contrary to that, the Dualist Theory states that both laws exist totally independent from
each other. International law and national law are, according to this theory, two separate
legal orders. They should be distinguished because of their different sources, the different
relations they cover, and because of their substance of law.7 Following this theory, the
ICCPR and German national law must be treated as two independent legal orders.
1.2.2. Germany
There is no clear and obvious solution for this discussion in Germany.
Above all, the German constitution contains no explicit ruling about how to define the
relationship between German law and international law. However, Article 25 GG, which
stipulates that the general rules of public international law form part of the federal law,
could be interpreted in a dualistic way. The provision incorporates the general principles of
international law into national law, treating them as a part of a separate legal order. Besides
this, Article 100 (2) GG determines the proceedings when it is unclear whether a regulation
of international law is part of the federal law or not. This leads to the conclusion, that in
general, international law has to be seen as an independent legal system. Thus, the German
constitution obviously follows the dualistic idea, that the relationship between international
law and national law is one of two different legal orders.
Furthermore, also the decisions of the German Constitutional Court follow the dualist
theory, but in a moderate way.8 In its decision, BVerfGE 45, it refers to the requirements of
both legal orders,9 and through that, to international law and national law as two
independent legal systems. However, in the same decision it states that this does not
exclude that conflicts between those two legal orders can occur.10 This follows the idea of
Moderate Dualism, which agrees that international law and national law are two different
legal systems, considering them as two separate, yet overlapping circles.11
1.3. The ICCPR
In conclusion, the ICCPR and the German law are to be considered as independent from
each other, but in some cases overlapping and conflicting.

2. The connection between international and national law

Lauterpacht, in: Dixon/McCorquodale, Cases and Materials on International Law, pp. 104 et seq.
BVerfGE 45, pp. 83 et seqq.
9
BVerfGE 45, pp. 83 et seqq. (96)
10
BVerfGE 45, pp. 83 et seqq. (96)
11
Hemmer/Wuest, Vlkerrecht, p.60
8

The next question has to be about how international law and national law are connected.
How do the states have to make international law applicable in their own national legal
system? In general, when entering into an international treaty like the ICCPR, states are
required to fulfill their obligations, but they are free in their methods. 12 This means that the
states are obliged to give formal recognition and applicability to its provisions in their
domestic legal system, but have the choice of measures.
2.1. The Human Rights Committees requirements for the implementation of the
ICCPR in the member states
For the member states of the ICCPR, this is explicitly regulated in the Covenant. Pursuant
to Article 2 (1) of the ICCPR,13 each state party has to respect and ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present
covenant. According to the monitoring body of independent experts, this obligation has
immediate effect14 for all member states. Contrary to the assumption that the Covenant
contains only obligations of result15 and because of that, just requires the state party not
to violate the rights of the ICCPR, it is nowadays undoubted that the Covenant also
necessitates the member state to act in a certain way, to provide sufficient human rights
protection. Those obligations of conduct16 can be seen clearly in the wording of Article 2
(1), which stipulates, the state party must respect and ensure the rights recognized in the
Covenant. Furthermore, the Human Rights Committee has stated that the obligation in
Article 2 (1) is also positive in nature. 17 This means that every state party to the ICCPR has
an obligation to implement the Covenant in a negative, as well as in a positive way.
Although, according to Article 2 (2), each member state to the Covenant has to implement
the ICCPR in accordance with its constitutional processes and with its provisions of the
present Covenant. Thus, the state parties are obliged to take the necessary legislative and
other steps to give effect to the rights contained in the ICCPR, but they have the choice of
measures of implementation, as long as they act within the framework set out in Article 2. 18
According to the Human Rights Committee, this does not only include constitutional and
legislative enactments, but also certain actions to ensure individual rights and make them
applicable.19 In addition, the Committee demands that all individuals should know what
12

Malanczuk, Akehursts modern introduction to international law, p.64, Hemmer/Wuest, Vlkerrecht, p. 60

In the following, each provision, if not marked in a different way, is a provision of the ICCPR
14
General Comment 31, paragraph 5
15
Seibert-Fohr, ZaRV, p. 393
16
Seibert-Fohr, ZaRV, p. 393
17
General Comment 31, paragraphs 6 et seq., General Comment 3, paragraph 1
18
Seibert-Fohr, ZaRV, p.421; General Comment 3, paragraph 1
19
General Comment 3, paragraph 1
13

their rights are and that national authorities should be aware of their duties and
regulations.20
2.2. General Theories
There are various theories about how states can implement international law. The most
important ones, regarding the implementation of international law in Germany, are those of
adoption, execution, and transformation.21
According to the Theory of Adoption, international law is made applicable by integrating it
into the national legal order, without changing its character as international law.22 When
international law becomes binding upon the member states, it is, according to this theory,
automatically adopted in the national legal order.23 However, the question of which
position the international law has in the domestic legal order is not answered by this theory
at all. Following this, the ICCPR would be adopted in the German domestic legal system,
while still having the status of international law.
The Theory of Execution follows, in its conclusion, the Theory of Adoption by saying that
international law is integrated in the domestic legal order without losing its character as
international law. It goes further by demanding a special order of execution for each
separate international treaty.24 This means that the applicability of the ICCPR as
international law in the national legal system would depend on an intrastate order of
execution.
To the contrary, the Theory of Transformation demands an act of transformation, a legal
action which makes international law convert into national law.25 This happens either
through a general transformation of all binding international treaties or through the
transformation of specific international law.26 The transferred law is then always applied
within the national law system. The ICCPR would, according to this theory, be made
applicable by an act of transformation into national law, either automatically or through a
specific action.
2.3. Germany
20

General Comment 3, paragraph 2

Malanczuk, Akehursts modern introduction to international law, p.64, Hemmer/Wuest, Vlkerrecht, p.60
22
Hemmer/Wuest, Vlkerrecht, p.60 , Heintzen Markus: http://www.fu-berlin.de/jura/2Forschung/
WE3/LS_Heintzen/Veranstaltungen/0102WS/v_bezuege_des_GG_heinzen/Der_Abschluss_voelkerrechtliche
r_Vertraege.pdf
23
Heintzen Markus: http://www.fu-berlin.de/jura/2Forschung/WE3/LS_Heintzen/Veranstaltungen/0102WS/
v_bezuege_des_GG _heinzen/Der_Abschluss_voelkerrechtlicher_Vertraege.pdf
24
Hemmer/Wuest, Vlkerrecht, p 60
25
Hemmer/Wuest, Vlkerrecht, p.61
26
Heintzen Markus: http://www.fu-berlin.de/jura/2Forschung/WE3/LS_Heintzen/
Veranstaltungen/0102WS/v_bezuege_des_ GG_heinzen/Der_Abschluss_voelkerrechtlicher_Vertraege.pdf
21

The German Bundesverfassungsgericht does not show any uniform opinion on this
discussion so far,27 and also the German constitution has no explicit regulation about how
international law has to be implemented. In general, Article 25 GG is seen as a extensive
transformer for general rules and principles of public international law.28 Furthermore,
Article 59 (2) GG stipulates that treaties which regulate the political relations of the
Federation, or relate to matters of Federal legislation, require the consent or participation,
in the form of a federal law, of the bodies competent in any specific case for such Federal
legislation. This is widely seen as a basis for a particular transformation. 29 In Germany, an
act of parliament is required to convert international treaties into national law. This leads to
the consequence that in the situation of conflicting provisions, the German constitution has
priority because the transformed international treaty has the position of federal law and
is therefore subsidiary.
2.4. The ICCPR
Following this, the International Covenant on Civil and Political Rights was converted
into German federal law by a formal statute pursuant to Article 59 (2) GG.
The ICCPR is therefore directly applicable in Germany and binding for all bodies of the
German government,30 and therefore all people living in the Federal Republic are able to
invoke their rights, guaranteed by the Covenant, directly in front of a national court. The
federal government also works on its positive obligations by providing certain actions to
ensure and strengthen human rights (see II 3.2) and also to inform the individual about his
rights. This is made possible by making the wording of the Covenant accessible for all
Germans. In 1973, as like every statute, it was printed in the Federal Law Gazette (1973
Part II p.1553). Additionally, information-brochures were published by the government, as
well as a book named Human Rights which contains the Covenant and its two Optional
Protocols. Moreover, there is an official webpage31 which houses the most important texts
on human rights protection.32

27

BVerfGE 1, pp 396 et seqq. (411); 75, pp.223 et seqq. (244)

Hemmer/Wuest, Vlkerrecht, p.62, Markus Heintzen: http://www.fu-berlin.de/jura/2Forschung/
WE3/LS_Heintzen/Veranstaltungen/0102WS/v_bezuege_des_GG_heinzen/Der_Abschluss_voelkerrechtliche
r_Vertraege.pdf
29
Hemmer/Wuest, Vlkerrecht, p.62, http://www.fu-berlin.de/jura/2Forschung/ WE3/LS_Heintzen/
Veranstaltungen/0102WS/v_bezuege_des_GG_heinzen/Der_Abschluss_voelkerrechtlicher_Vertraege.pdf
30
CCPR/C/DEU/2002/5, paragraphs 17, 18
31
http://www.auswrtiges-amt.de
32
CCPR/C/DEU/2002/5, paragraph 17
28

3. Germany as a state party to the International Covenant on Civil and Political

Rights
Germany signed the ICCPR on 09.10.1968, and ratified it on 17.12.1973. This means that
Germany is an official state party to the Covenant, and because of that, is obliged to give
formal recognition and applicability to all of its provisions.
3.1. Declarations and Reservations
However, states which become part of the ICCPR can make reservations to particular
articles of the Covenant. Pursuant to Article 2 (1) (d) of the Vienna Convention on the Law
of Treaties, a reservation is a unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty in their
application to that State. However, pursuant to Article 19 of the Vienna Convention on the
Law of Treaties, this is only possible unless it is forbidden by the treaty itself or contrary to
the object and purpose of the treaty. Those reservations can be made in the signing process,
and at the latest, when ratifying the treaty.33 This possibility for the member states has the
intention to limit the degree to which they have to ensure certain provisions, and through
that, to encourage states to ratify international treaties, even if they have doubts about
being yet in a position to fully guarantee a particular right or just disagree with certain
regulations.34
It is important to distinguish between reservations and simple interpretations. Through the
latter, a state clarifies in which way it interprets certain provisions in accordance with the
general rules of interpretation pursuant to Articles 31 et seqq. of the Vienna Convention on
the Law of Treaties.35
When ratifying the Covenant, Germany made declarations and reservations on Articles 14
(3) (d), 14 (5), 15 (1), 19, 21, 22 and 2 (1) of the ICCPR36.
First of all, Articles 19, 21 and 22 in connection with Article 2 (1) of the Covenant, shall be
applied within the scope of Article 16 of the European Convention of Human Rights.37 This
means that nothing in those articles, concerning the freedoms of speech and of expression,
the right of peaceful assembly, the freedom of association with others, and the order of
33

Hemmer/Wuest, Vlkerrecht, p. 19
Hemmer/Wuest, Vlkerrecht, p.19
35
Hemmer/Wuest, Vlkerrecht, p. 19
36
http://www.unhchr.ch/tbs/doc.nsf/73c66f02499582e7c1256ab7002e2533/9662adf150f9a35bc1256aa1002bc
38e?OpenDocument
37
http://www.unhchr.ch/tbs/doc.nsf/73c66f02499582e7c1256ab7002e2533/9662adf150f9a35bc1256aa1002bc
38e?OpenDocument
34

respecting and ensuring those rights to everybody, without any distinction on the basis of
the listed grounds, should prevent Germany from restricting the political activities of
aliens.
Furthermore, Article 14 (3) (d) of the Covenant, which orders that a person who is under
prosecution for a criminal charge must have the right to be tried in his or her presence,
shall be applied in such a way that the court of review, Revisionsgericht, shall decide
whether an accused person, held in custody, has to appear in person at the hearing.38
In Article 14 (5) of the ICCPR, it is determined, that every person that has been convicted
of a crime shall have the right of having the conviction and the sentence reviewed by a
higher court. Germany made reservations on this article as well, saying that a further
appeal does not have to be granted just because the defendant has been acquitted by a
lower court, and in the following trial, was convicted for the first time by an appellate
court. Moreover, in the case of minor criminal offences, the review of a decision by a
higher tribunal, not imposing imprisonment, does not have to be admitted in every case.39
Finally, Article 15 (1), the nulla poena sine lege provision of the Covenant, shall be
applied in such manner that when provision is made by law for the imposition of a lighter
penalty the hitherto applicable law may for certain exceptional categories of cases remain
applicable to criminal offences committed before the law was amended."40
Germany made further reservations on Article 5 (2) (a) of the first Optional Protocol,
which leads to the restriction of the competence of the Human Rights Committee41.
3.2. Germanys fifth report under Article 40 of the ICCPR
Despite those declarations and reservations, through signing and ratifying the ICCPR,
Germany has the obligation to provide and guarantee a certain level of human rights
protection. This is supervised by the Human Rights Committee, considering the member
states periodic reports under Article 40 of the ICCPR.
3.2.1. The report
Germany submitted its fifth periodic report in December 2002. They declared that the
Federal Republic of Germanydesire(s) to cooperate at national, regional and
international level(s) with all governmental supra national and non-governmental
38

http://www.unhchr.ch/tbs/doc.nsf/73c66f02499582e7c1256ab7002e2533/9662adf150f9a35bc1256aa1002bc
38e?OpenDocument
39
http://www.unhchr.ch/tbs/doc.nsf/73c66f02499582e7c1256ab7002e2533/9662adf150f9a35bc1256aa1002bc
38e?OpenDocument
40
http://www.unhchr.ch/tbs/doc.nsf/73c66f02499582e7c1256ab7002e2533/9662adf150f9a35bc1256aa1002bc
38e?OpenDocument
41
http://www.ohchr.org/english/countries/ratification/5.htm

organisations in order to support the effective protection and promotion of human rights. 42
Furthermore, they formulated that basic and human rights form the core of the German
Constitution.43 This also becomes visible in Article 1 (2) GG, where it is said, the
German peopleacknowledge inviolable and inalienable rights as the basis of every
community, of peace and of justice in the world. Actually, the Grundgesetz contains a
broad catalogue of human rights as they appear in the Covenant. Examples include the
freedom of expression (Article 5 GG), the freedom of assembly (Article 8), and the
principle of equality (Article 3 GG). In Article 1 (1) GG, the inviolability of the dignity of
man is determined, following hereby Article 1 of the Universal Declaration of Human
Rights. Nevertheless, Germany made a lot of efforts in the last years to further increase
human rights protection, especially by improving their domestic tools. The most important
steps are listed in their fifth report.44
In 1998, the German government established an independent Commission on Human
Rights which supervises the human rights protection in Germany and also in other
countries. In addition, the Office of the Commissioner for Human Rights and
Humanitarian Aid was created at the Foreign Office, supporting the Commissioner for
Human Rights Issues at the Federal Ministry. The dialogue between the federal
government and the parliament is guaranteed, since 2002, through the German government
submitting a report, every two years, regarding the internal human rights situation to their
parliamentary organ. On 08.03.2001, the National Human Rights Institute was finally
established as a civil society establishment, totally independent from the German
government. Its task is to provide information, education and documentation, as well as to
promote public discussion and awareness. Moreover, it should guarantee and supervise the
dialogue between government and non-governmental organisations and act as a neutral
mediator between them.
Many measures towards the improvement of human rights protection were established in
the last years, as for example, improvements of human rights education 45 and childrens
rights and protection.46 Nevertheless, the emphasis in Germany still lies on the fight against
xenophobia, anti-Semitism and right-wing radicalism. In reaction, the Alliance for
Democracy and Tolerance was founded in May 2000, uniting more than 900 groups and
individuals.
42

CCPR/C/DEU/2002/5, paragraph 14
CCPR/C/DEU/2002/5, paragraph 3
44
CCPR/C/DEU/2002/5, paragraphs 6 et seq.
45
CCPR/CO/80/DEU, paragraph 5
46
CCPR/C/DEU/2002/5, paragraphs 283 et seqq.
43

10

However, Germanys work on human rights does not stop within its own borders. On the
European level, Germanys membership in the European Union and in the Council of
Europe has to be highlighted. On the international level, Germany has subjected itself to
the communication procedures, in accordance with the UN Convention on the Elimination
of all Forms of Racial Discrimination from 07.03.1966 and in accordance with Articles 21
and 22 of the UN Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment. Finally, Germany subjected itself to the proceedings of Article
41 of the Covenant, for the first time without any time limitations, and ratified in January
2002, the Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW), hereby recognising its communication and
inquiry procedure.
3.2.2. Concluding observations of the Human Rights Committee
On its 2170th and 2171st meetings on 17.03.2004, the Human Rights Committee
considered the state report of Germany. As a result, they made their concluding
observations at their 2188th meeting on 30.03.2005.47
On one side, the Human Rights Committee accentuates the ongoing positive role of
Germany in human rights protection progress and the laudable measures taken to improve
the protection and promotion of fundamental rights. Furthermore, it appreciates the work
of the German Constitutional Court, which made a great contribution towards the
protection and strengthening of human rights and finally it welcomes Germanys
unambiguous refusal of torture.
Conversely, the concluding observations contain the Human Rights Committees concerns
about certain situations in the German Federal Republic. In paragraph 10 of the document,
it is said, Germany should think about withdrawing their reservations on the Covenant, as
well as on the Optional Protocol. The Committee is hereby, especially concerned about
Article 15 (1), as a non-derogable right.48
Another matter of concern is the applicability of the Covenant to individuals, subject to
Germanys jurisdiction, when troops or other forces are acting outside of the German
borders. The Federal Republic has not given a statement to that theme so far, and the
Committee therefore wants to further accentuate that the applicability of international
humanitarian law does not exclude the applicability of the ICCPR, and by that, the
responsibility of the member states under the Covenant. Paragraph 23 further asks
47
48

CCPR/CO/80/DEU, paragraph 1
CCPR/CO/80/DEU, paragraph 10

11

Germany to clarify its position. Furthermore, it is wished that they give specific training to
their security forces for international missions in the provisions of the Covenant.
As a result of Germanys federal structure, according to the Committee, there is a risk that
acts which come into force will not agree with the present Covenant. The federal
government is pursuant to Article 50, generally responsible for the compliance of domestic
acts with the ICCPR, and has therefore, to ensure that also those acts that fall in the
exclusive competence of the Lnder are corresponding with the Covenant.
Furthermore, the Committee criticizes that there are still too few women in senior positions
in the public service, despite the progress made in the protection of womens rights in the
last years. Also in the private area, there is still too much of a disparity between the wages
of men and women. Articles 3 and 26 must be respected, and therefore, they expect
Germany to take further necessary steps.
Moreover, to guarantee the rights stipulated in Articles 3 and 7, Germany is recommended
to improve and strengthen their policy against domestic violence.
In paragraph 15, the Human Rights Committee mentions its concern about a violation of
Article 6, the right of life, through the use of firearms by the German police. Even though
the police have sharp restrictions and the number of persons killed or injured as a result of
police use of force has declined in recent years, the Committee still fears that the use of
firearms could not always be justified, and because of that, violating Article 6 of the
Covenant. For that reason, Germany is asked to ensure prompt, thorough and impartial
investigation of all cases of person killed or injured as a consequence of the use of firearms
by police forces, bring to justice those responsible for violations of the law, and grant full
reparation, including fair and adequate compensation, and rehabilitation to victims and
their families.49
Germany should also improve their monitoring of, and measures concerning, the illtreatment of people by police officers, in order to avoid a breach of Article 7 of the ICCPR.
The Human Rights Committee further criticises the often poor and inhumane condition of
elderly persons in long-term care homes in Germany, in regards to Article 7. Additionally,
Article 8 of the Covenant could be violated by the persisting problem of trafficking of
human beings, in particular women, in Germany.
According to paragraph 19, the Federal Republic could be in breach of Articles 18 and 25

49

CCPR/CO/80/DEU, paragraph 15 (a)

12

by refusing to employ persons in the public service which are supporters of certain
religious organisations or beliefs. It is recommended to make sure that they always have to
act in accordance with the ICCPR.
In addition, the Committee wants Germany to ensure that their anti-terrorism measures do
not result in a deterioration of the situation of people of foreign origin living in the German
territory because of a latent suspicion towards them. 50 This could happen either through
an abuse by the authorities or through growing fear and insecurity in the German
population, thereby leading to a violation of Articles 17, 19, 22 and 26.
Finally, the Committee mentions its concern about the situation of the Roma in Germany,
still facing persistent discrimination, especially regarding access to housing and
employment, as well as deportations. This is a problem concerning rights of equality
(Articles 26, 27).
Considering the aforementioned points, it becomes clear that even though Germany
already has a very high standard of human rights promotion and protection, there are still
some unsatisfactory situations that endanger the fully sufficient compliance with their
obligations under the International Covenant of Civil and Political Rights.
3.2.3. Comments by the Government of Germany to the Concluding Observations of
the Human Rights Committee
On 11.04.2005, the German government replied to the concluding observations of the
Human Rights Committee. In their comments, it is stated that the Covenant is applicable to
all persons that are subject to German jurisdiction, even if the armed forces or the police
operate outside of the German borders, especially concerning peace missions. Germanys
international duties and obligations remain unaffected. Finally, in the training of
international security forces, there are special instructions within the provisions of the
ICCPR.51 The Federal Republic has, therefore, sufficiently implemented the Committees
recommendations.
3.3. The implementation of certain provisions of the Covenant
To get a better impression about the actual status of the International Covenant on Civil an
Political Rights in the German domestic legal order, it is important to take a closer look at
particular provisions of the Covenant and their implementation.
3.3.1. Article 1
In Article 1, the ICCPR stipulates that all peoples have the right of self-determination
50
51

CCPR/CO/80/DEU, paragraph 20
http://www.unhcr.ch/tbs/doc.nsf/(Symbol)/CCPR,CO.80.DEU.Add.1.En?Opendocument

13

(and that) by virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development. In its fifth and also in the fourth
report of 1993, Germany places special emphasis on the right of self-determination, which
is now provided by the German Constitution. 52 Before the reunification of the former
German Democratic Republic and the Federal Republic of Germany in October 1990,
during the time of Cold War and global East-West confrontation, the right of selfdetermination was not sufficiently guaranteed. In the German Democratic Republic, which
had established a Marxist-Leninist dictatorship, led by the Socialist Unity Party, for over
40 years people were not allowed to freely decide their political association, nor their
social, cultural or economic situation. By unifying the two separated parts of Germany,
establishing the Federal Republic of Germany, the German Grundgesetz became applicable
within the entire unified territory. Through that progress, respect for the rights set out in the
Covenant had been extended to the newly connected parts. It established a free democratic
order, providing the right of self-determination to all people in Germany. Several articles
now ensure the German peoples right to freely pursue their economic, social and cultural
development. For example, in Article 12 GG, the right to choose an occupation is
guaranteed, and more importantly, through Article 2 (1) GG, everyone has the right to the
free development of his personality, insofar as he does not violate the rights of others or
offend against the constitutional order or the moral code. The most important provision
which concerns political self-determination is Article 25, which gives the power of
political influence to the individual. It says:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in Article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the
will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
This is realized, in particular, within the principles of democracy and sovereignty of the
people guaranteed under Article 20 GG. Furthermore, through Article 28 GG, referring to

52

CCPR/DEU/2002/5, paragraph 16; CCPR/C/84/Add.5, paragraph 12

14

the requirements of elections in the so-called Lnder, and through Article 38 GG,
concerning the elections to the German Parliament, Article 25 is implemented.53
The right of self-determination of Article 1 is, therefore, sufficiently guaranteed by the
German constitution.
3.3.2. Article 3
Article 3 of the ICCPR obligates the member states to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the present Covenant.
In its fifth report, Germany emphasized that the federal government is in an ongoing
process of recognizing womens rights as human rights.54 In fact, the strengthening of
womens rights is one of the major themes in German policy.
In the German constitution, the principle of equality enters in Article 3, and according to
Article 3 (2) GG, men and women shall be equal before the law. In October 1994, 55 Article
3 was amended with the intention to give the principle of equality of men and women more
effect in reality. The sentence, the state shall promote the actual implementation of equal
rights for women and men and take steps to eliminate disadvantages that now exist was
added. This was to launch at Federal, Land and local level a proper promotion policy in
order to achieve effective equal rights between the genders.56
In 2000, Article 12a, paragraph 4, 2nd sentence GG was rewritten to give German women
the possibility to get access to all careers within the armed forces. 57 This removed the
former discriminative differentiation between men and women, which formerly allowed
women to only work as medical corps or in the military music service.
There was also a progress in Germanys equality policy, focusing especially on the
continually insufficient situation of women in the labour market. In June 1999, 58 the
Women and Work programme was adopted in the federal government, focusing on the
introduction of this theme into all areas of policy, known as so-called gender
mainstreaming.59 This was a step towards more effective work on womens rights. The
programme aims at the improvement of training and work situations, the abolishment of
different wages and incomes for men and women, the removing of barriers for women
starting their own businesses, and finally, to help women unite their families and their jobs,
53

CCPR/C/84/Add.5, paragraph 163

CCPR/C/DEU/2002/5, paragraph 25
55
CCPR/C/DEU/2002/5, paragraph 27
56
CCPR/C/DEU/2002/5, paragraph 27
57
CCPR/C/DEU/2002/5, paragraph 28
58
CCPR/C/DEU/2002/5, paragraph 29
59
CCPR/C/DEU/2002/5, paragraph 29
54

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making this situation more attractive for them. As a consequence, Germanys statutory
framework was improved by adapting educational assistance benefits and parental leave
from 2001 onwards.60
Furthermore, in January 2001, the Act on Part-Time Working and Fixed-Term Employment
Contracts came into force.61 By improving and strengthening part-time work, a major step
towards reconciliation of family and gainful work62 was accomplished.
In July 2001, the Agreement to Promote Equal Opportunities in Private Industry was
signed between the German government and the private industry.63 In December 2001,64
the Federal Equality Act for the Federal Administration and the Courts of the Federation
came into force, introducing the principle of equality for men and women also in the
Federations public service. Moreover, through the reform of the Works Constitution Act in
July 2002, it contains now a large number of regulations which support the improvement of
womens positions in the labour market.65
On the international level, it is worth mentioning Germanys adoption of the United
Nations Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) in 198566 and its Optional Protocol in 200267, as well as their active work in the
context of CEDAW.
3.3.3. Article 7
The prohibition of torture and other forms of inhuman or degrading treatment
Pursuant to Article 7, sentence 1 of the ICCPR, no person shall be subjected to torture and
other cruel, inhumane or degrading treatment or punishment. Following this provision of
the Covenant, torture is absolutely prohibited in Germany. It is a violation of the German
Constitution, namely, of Article 1 (1) GG, that commits all state authority to respect and
protect the inviolable dignity of man, and of Article 2 (2) GG, that guarantees the right to
life and to inviolability of person to everybody. In Article 104, paragraph 1, 2 nd sentence
GG, the basic law especially regulates this prohibition for detained persons, as being in an
even more vulnerable and helpless situation to the state authority. Accordingly, detected
persons may be subjected neither to mental nor to physical ill-treatment. In addition, there
are numerous safeguarding provisions in the German procedural law concerning the
60

CCPR/C/DEU/2002/5, paragraph 30
CCPR/C/DEU/2002/5, paragraph 38
62
CCPR/C/DEU/2002/5, paragraph 30
63
CCPR/C/DEU/2002/5, paragraph 34
64
CCPR/C/DEU/2002/5, paragraph 32
65
CCPR/C/DEU/2002/5, paragraph 37
66
http://www.un.org/womenwatch/daw/cedaw/states.htm
67
http://www.un.org/womenwatch/daw/cedaw/protocol/sigop.htm
61

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treatment of detainees.68
Furthermore, any form of torture is prohibited by the German Criminal Code, the
Strafgesetzbuch (StGB), placing for example bodily harm (Sections 223 et seqq. StGB),
the deprivation of liberty (Section 239 StGB), coercion (Section 240 StGB) and threat
(Section 241 StGB) under punishment. Section 340 StGB explicitly addresses officeholders, prohibiting any action in the exercise of their office that physically abuses a
person. In addition, Section 343 StGB places the exhorting of testimony under duress by
office-holders under punishment. On 01.04.1998, the Sixth Act to Reform Criminal Law
came into force, pursuing the goal to give a higher status to highly personal rights, such as
the rights of life, personal integrity and freedom. 69 The provisions for bodily harm
protection were improved and strengthened, and the pure attempt is now also punishable. 70
Section 340 StGB was altered in the sense that the attempt at bodily harm in office is now
a crime as well, and the punishments for major crimes were intensified.71
A violation of Article 7 is also seen in the extradition of persons to countries where it can
be expected they would receive torture or other inhumane treatment. 72 In their fifth report,
Germany states that they prevent such an infringement of the ICCPR by Section 53 of their
Aliens Act, which regulates in Subsection 1 that a person can not be deported to a state in
which there is a specific risk of being tortured. 73 In the case of the risk of considerable
danger to life, limb or freedom, Section 53 (6) of the Aliens Act and Section 60 (7) of the
Residence Act can prevent a deportation. Compliance with Article 7 in this sense is,
therefore, consequently secured.
As already mentioned (see 3.2.2.), in connection with Article 7, also the problem of
elderly persons in long-term care homes arises. According to the Human Rights Committee,
the situation of those individuals in Germany is still unsatisfactory and because Article 7
prohibits all forms of cruel, inhuman or other degrading treatment, Germany could, as a
consequence, be in breach of the ICCPR.
There are provisions in Germany to protect the rights of the home residents. Besides the
more general Criminal Code, there is the Homes Act, which was amended in 200274 and
aims to protect the dignity, interests and needs of home residents against possible
68

CCPR/C/DEU/2005/5, paragraph 95
CCPR/C/DEU/2005/5, paragraph 95
70
CCPR/C/DEU/2005/5, paragraph 95
71
CCPR/C/DEU/2005/5, paragraph 95
72
CCPR/C/DEU/2005/5, paragraph 100
73
CCPR/C/DEU/2005/5, paragraph 100
74
CCPR/C/DEU/2005/5, paragraph 109
69

17

interference (Section 2 (1) of the Homes Act), and this includes protection against
degrading treatment.75 Section 11 of the Homes Act regulates specific requirements which
have to be fulfilled to be allowed to run a home for the elderly. This includes the duty to
protect and promote human dignity, self-determination, independence and selfresponsibility of the residents, and to further ensure a sufficient level of care and medical
treatment. The fulfilment of those requirements can be checked at any time by the states
home inspection authorities.76 In their fifth report to the Human Rights Committee,
Germany admits that there remains, despite safeguards, a lack of quality in the care homes.
Quality checks showed that there are insufficient conditions in a lot of homes, as for
example, inadequate skills and knowledge of the responsible care staff. 77 However, the
Federal Republic agrees that this can not be tolerated and must be consistently remedied
as a matter of urgency. 78 Moreover, on 01.01.2002, the Long-Term Care Quality
Assurance Act came into force, aiming at the improvement of the quality of care homes in
Germany. Further developments have to be seen in future observations.
On an international level, Germany has ratified a large number of treaties that contain
provisions against torture: including the European Convention on Human Rights (ECHR),
the European Convention for the Prevention of Torture and Inhuman and Degrading
Treatment or Punishment (CPT) and the UN Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT).
Medical Experimentation
Pursuant to Article 7, 2nd sentence, above all, no one shall be subjected to medical or
scientific experimentation without his approval. In Germany, those experiments are
subjected to very severe statutory provisions, requiring amongst other things, the
comprehensive information by a physician and the consent of the concerned person
(Section 40 and 41 of the Pharmaceuticals Act). If it concerns minors, requirements are
even stricter, and if it is not possible for a sick adult person to give his consent, it depends
on the permission by the statutory representative and is only allowed when the medical
treatment has the aim to improve the sick persons situation. 79 Medical experimentation is
absolutely forbidden on sentenced persons and others placed in an institution on order by
an authority or court, even if they give their consent (Section 40 (4) of the
75

CCPR/C/DEU/2005/5, paragraph 110

CCPR/C/DEU/2005/5, paragraphs 111, 112
77
CCPR/C/DEU/2005/5, paragraph 113
78
CCPR/C/DEU/2005/5, paragraph 116
79
CCPR/C/DEU/2005/5, paragraphs 104 et seqq.
76

18

Pharmaceuticals Act . This derives from the assumption that those individuals are in such a
special situation that their actual free and rational will is in question.80

. Conclusion
In conclusion, it can be said that the ICCPR has, amongst other important human rights
treaties, a very high status in Germany. Above all, the Covenant is directly applicable in
Germany and binding for all bodies of the German government, but still subsidiary to the
constitution. Especially since the reunification of the former German Democratic Republic
and the Federal Republic of Germany in October 1990, numerous important and effective
measures were taken to improve the protection and promotion of human rights. In
particular, by making the German constitution applicable in the whole unified territory,
respect for the fundamental rights set out in the Covenant had been extended to the newly
connected Lnder, and is, therefore, now guaranteed in all of Germany. As already
discussed (see 3.3.), the ICCPR, and consequently, respect for human rights, have found
entry into wide parts of the German constitution. The basic law includes essential human
rights in the list of basic rights. Furthermore, the German Constitutional Court plays a
continually large role in protecting fundamental rights through its decisions, 81 where it also
refers directly to the Covenants provisions. Germanys concern about human rights
becomes further obvious when considering its ongoing cooperation with the international
community, especially in the field of human rights.
As a negative aspect, the maintenance of their reservations on the provisions of the ICCPR,
as well as to the first Optional Protocol, have to be mentioned. Limiting the full effect of
the Covenant in Germany, as well as the power of the Human Rights Committee, Germany
still earns critics. Moreover, despite all measures taken, the situation in Germany remains
shy of being satisfactory (see 3.2.2. and 3.3.), and not all provisions of the Covenant
have been completely implemented so far.
As a result, the Federal Republic is obligated to take further measures to ensure and respect
human rights in all fields of their concern. However, significant progress has been
demonstrated.

80
81

CCPR/C/DEU/2005/5, paragraph 108

CCPR/CO/80/DEU, paragraph 8

19

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