UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY, CHANDIGARH

INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS, 1996 (ALONG WITH ITS
OPTIONAL PROTOCOLS)

A PROJECT REPORT SUBMITTED AS A PART OF CURRICULUM OF B.A.LL.B. (HONS.)

IN THE SUBJECT OF
“INTERNATIONAL HUMAN RIGHTS”

SUBMITTED TO: SUBMITTED BY:

Ms. EKTA GUPTA ACHINTAYA SONI
SECTION B
SEMESTER 9
ROLL NO. 61/18
 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our professor Ms. Ekta who gave me
this golden opportunity to do this wonderful project on the topic “International Covenant
on Civil and Political Rights, 1996 (along with its optional protocols)” which helped me
in gaining a lot of knowledge on the basic principles and nuances in the field concerning
International Human Rights.

Also, I am grateful to the department authorities for the E-resources provided by the
department library and my classmates for their support while researching for the project
which helped me to complete it on time.

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 TABLE OF CONTENTS

S. NO. TOPIC PAGE NO.

1. Introduction 4

2. Brief History of the Covenants 5

3. India’s Accession to the Covenants 6

4. International Covenant on Civil and Political Rights, 1966 7-10

 Structure of International Covenant on Civil and Political
Rights
 Implementation Mechanism of the Covenant
 Human Rights Committee
5. Optional Protocols 11-12

6. Case Study 13

7. Conclusion 14

8. Sources 15

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 INTRODUCTION

Sometimes a distinction is made between “basic” human rights and “civil” human rights. The
concept of “basic” human rights is inherent in natural law—jus naturale. The Romans
divided natural law into three divisions—jus civile, jus gentium and jus naturale. Jus civile
was applied to Roman citizens (just as the provisions of Article 19 of the Indian Constitution
apply to citizens of India only); jus gentium was applied to Romans as well as foreigners (like
Articles 14 and 21 of the Indian Constitution); and later both these were merged to be known
as jus naturale as the Roman citizenship was extended to everyone except a few categories of
people. The “civil” human rights are man-made and are rooted in socio-economics. 1 Llyod
claims that the Universal Declaration of Human Rights (UDHR) and the European
Convention on Human Rights are essentially natural law documents. Irrespective of any
classification, now it is agreed that all human rights are universal, indivisible, interrelated,
interdependent and mutually reinforcing and must be treated in a fair and equal manner, on
the same footing with the same emphasis.

Development of human rights at international level can be traced with the establishment of
the United Nations Organisation. The Charter of the UN not only re-affirms faith in
fundamental human rights, but also establishes a principal organ, the Economic and Social
Council (ECOSOC) for the purpose of promoting respect for, and observance of, human
rights and fundamental freedoms for all. The ECOSOC established the Commission on
Human Rights (consisting representatives of governments which included violators of human
rights) which, inspite of inherent shortcomings, made significant contribution in the form of
three instruments—the Universal Declaration of Human Rights, 1948, International Covenant
of Civil and Political Rights, 1966 and International Covenant of Economic, Social and
Cultural Rights, 1966. The Commission on Human Rights was replaced by the Human Rights
Council in 2006.

1
Oppenheim’s International Law, Vol. I (1992) 1012

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 BRIEF HISTORY OF COVENANTS

The UN Declaration of 1st January 1942 made by the Allied Powers of the World War II
made the issue of human rights as an end of the war. The Charter of the UN, 1945 begins
with a recitation of human rights and assigns a comprehensive role to the General Assembly
and the Economic and Social Council (ECOSOC) for the promotion of human rights. It was
decided during the drafting of the Charter that there should be a Bill of Rights of nations and
of individuals. In the first session of the General Assembly, Cuba had presented a draft on
“The Declaration of Fundamental Human Rights and Freedoms”.

The first task given by the General Assembly to the ECOSOC was to prepare an International
Bill of Rights. But there was a division of opinion between those who wanted the Bill of
Rights as a “Declaration” and those who preferred a “convention” or “covenant”. A
compromise was ultimately reached under which the Bill of Rights was to have two parts:
one, a declaration of certain international standards of human rights having moral force for
persuading States to accept them voluntarily; and the other, a set of rights and freedoms as a
part of international agreement or a treaty making them binding on States.

After the adoption of the UDHR in 1948, the Commission on Human Rights initiated the
drafting of the Convention having binding legal obligation. During this period, many
independent States joined the UN. Their perception of human rights was different from the
European States. These newly emancipated States had common experience of the colonialism
and exploitation at the hands of the European powers. They felt that economic, social and
cultural rights were more important than the civil and political rights and the former could
ensure larger freedoms. The implementation of the economic, social and cultural rights also
required a different monitoring mechanism. This prompted the General Assembly and the
ECOSOC to have two Conventions instead of one.

After 15 long years of negotiations, the General Assembly adopted two covenants on human
rights on 16th December 1966. After the requisite number of ratifications by the States Parties,
these covenants came into force in 1976. The Covenant on Economic, Social and Cultural
Rights, the Covenant on Civil and Political rights and the optional Protocol to the Covenant
on Civil and Political Rights were adopted by the General Assembly together.

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 INDIA’S ACCESSION TO THE COVENANTS

India declared internal Emergency on 25 June 1975 which lasted up to 19 March 1977.
During this period, draconian legislations were made and the Constitution was amended. The
citizens were denied their fundamental rights and the otherwise strong and active judiciary
also failed in protecting the citizens’ right to life and liberty. 2 Thus, the guaranteed rights
[Art. 32(2) of the Indian Constitution] were denied to the citizens. This scenario of internal
Emergency in 1975 led a distinguished author to declare that “no amount of constitutional
entrenchment will provide an irremovable barrier against the determined onslaught of the
adversaries of freedom, armed with sufficient force to overcome all resistance”. After the
defeat of the party in power in 1977 general elections, the Government of India acceded to
these covenants under public pressure and ratified these covenants in 1979.

2
ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521. The Supreme Court in Ram Deo Chauhan v. Bani
Kant Das, (2010) 14 SCC 209 has admitted that ADM Jabalpur v. Shivakant Shukla violated human rights of
citizens. This case has been overruled in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (Nine-Judge
Bench). The other judgment, in Union of India v. Bhanudas Krishna Gawde, (1977) 1 SCC 834: 1977 SCC (Cri)
208, which followed ADM Jabalpur or Habeas Corpus decision was also overruled.

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 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS, 1966

The International Covenant on Civil and Political Rights, 1966 (“ICCPR”) consists of a
preamble and 53 articles divided into six parts; optional Protocol with 14 articles adopted
with the covenant in 1966 and second Protocol with 11 articles adopted in 1989.

The covenant makes a distinction between civil and political rights. The civil rights cannot be
denied, while the State, in the given situations such as public emergency when the life of the
nation is threatened, may derogate from the obligations of the covenant. But, civil rights, for
example, right to life, right against torture, right against slavery and servitude, right against
imprisonment in contractual obligations, right against ex post facto penal laws, right to

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recognition before law and right to the freedom of thought, conscience and religion, cannot
be taken away in any situation.

STRUCTURE OF INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS:

Articles of Details
ICCPR
Article 1 It recognizes the right of all peoples to self-determination, including the
right to “freely determine their political status”, pursue their economic,
social and cultural goals, and manage and dispose of their own resources.
Articles 2 – 5 These articles enable parties to come up with legislation to give effect to
the rights recognized in the Covenant, and to provide a legal remedy in
case of violation of such rights.
Articles 6 – 27 Article 6 -27 contain rights such as:
Guarantee of physical integrity as in right to life and freedom from torture
and slavery.
Freedom from unlawful arrest, right to habeas corpus and guarantee of
individual liberty and security.
Fairness in law and its procedure through the rights to due process, fair
and impartial trial, the presumption of innocence.
Freedoms of moment, thought, religion association, conscience, assembly,
right to privacy and right to a nationality.
Disallowing propaganda for war and religious purposes as well as
advocacy of national or religious hatred that will result in violence or
hostility.
Political participation, including the right to the right to vote
Equality before the law, no discrimination on grounds of anyone being a
minority or not.
Articles 28 – 45 These articles establish the guidelines of the Human Rights Committee
will operate, as well as the reporting and monitoring of the Covenant.
It also enables the parties to recognise the authority of the committee to
resolve the disputes between parties on the implementation of the ICCPR.

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Articles 46 – 47 Articles 46 – 47 states that the provisions of the ICCPR does not mean that
parties will interfere with the operation of the United Nations or “the
inherent right of all peoples to enjoy and utilize full and freely their natural
wealth”
Articles 48 – 53 Governs ratification, entry into force, and amendment of the Covenant.

IMPLEMENTATION MECHANISM OF THE COVENANT

The States Parties to the Covenant on Civil and Political Rights undertake to submit reports
on the measures adopted by them to give effect to the rights recognised by the covenant and
on the progress made on their enjoyment. These reports are to be submitted to the Secretary
General of the UN who shall transmit them to the Human Rights Committee.3

Consolidated guidelines for State reports have been revised by the committee in 2010
(CCPR/C/2009/1 of 22 November 2010) superseding the earlier guidelines.

HUMAN RIGHTS COMMITTEE

Article 28 provides for the establishment of a Human Rights Committee consisting of 18

members, who are nationals of States Parties to the covenant.

Under Article 41, a party may declare that it recognises the competence of the committee to
receive and to consider communications to the effect that one party claims that another party
is not fulfilling its obligations under the covenant, provided that the party submitting the
communication has itself made a declaration recognising the competence of the committee.
When such a complaint is made to the committee, its role is essentially investigatory and
involves the committee in making its good offices available to the parties concerned with a
view for a friendly solution through an ad hoc Conciliation Commission.

The Human Rights Committee performs the vital function of monitoring the enjoyment of the
rights set out in the covenant, a legally binding international treaty. Whether in its
consideration of States Parties reports, its adoption of general comments, or its examination

3
Article 40

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of complaints by individuals or States alleging violations of the covenant, the committee is
the pre-eminent interpreter of the meanings of the covenant’s provisions, consistent with its
Charter as an instrument guaranteeing fundamental rights and freedoms. The committee’s
members do not simply look at the formal legal provisions applicable in a particular State or
case, but rather go deeper, to the practical realities on the ground in the States with which it is
concerned, and issue findings with a view to achieve positive change.

Over the years, the committee’s work has resulted in numerous changes of law, policy and
practice, both at the general national level and in the context of individual cases. In a direct
sense, therefore, committee’s discharge of the monitoring functions entrusted to it under the
covenant has improved the lives of individuals in countries in all parts of the world.

OPTIONAL PROTOCOLS

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There are two Optional Protocols to the Covenant.

I. First Optional Protocol to the International Covenant on Civil and Political Rights
(ICCPR-OP1)
Entered into force: 23rd March 1976

The Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-
OP1) was adopted by the United Nations General Assembly (Resolution 2200A (XXI)) on
16th December 1966. It establishes an individual complaints procedure for bringing alleged
violations of the Covenant by states parties before the ICCPR treaty body, the Human Rights
Committee.4 This is possible only where a State has accepted the special jurisdiction of the
committee. The committee after examining the complaint against the State and replies
therefrom, makes its own findings and recommendations, and forwards its views to the State
Party and to the individual complainant.5

As of 2019, there are 116 countries that are party to the first Protocol.

II. Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty (ICCPR-OP2)
Adopted by the General Assembly: 15th December 1989
Entered into force: 11th July 1991

The Second Optional Protocol to the International Covenant on Civil and Political Rights
(ICCPR-OP2) was adopted by the United Nations General Assembly (Resolution 44/128) on
15 December 1989. It commits states parties to the abolition of the death penalty. However, it
allows the States to implement death penalty for the most serious crimes of military nature,
committed during wartime. Article 1 prohibits prosecution of any person and obligates each
State Party to the Protocol to take necessary measures to abolish death penalty. This Protocol
is binding on those States which have specifically accepted it. India has not yet abolished
death penalty, although the courts give such punishment in the “rarest of the rare” cases. 6

As of 2019, the second opinion Protocol has 87 parties.

4
Article 1 of the ICCPR- OP1
5
Article4 of the ICCPR- OP1
6
Bachan Singh v. State of Punjab, (1980) 2 SCC 684

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 CASE STUDY

Diene Kaba v. Canada (2008)

Female genital mutilation amounts to torture and cruel, inhuman and degrading treatment or
punishment

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This case was submitted to the HRC by Ms. Diene Kaba who faced the deportation with her
daughter from Canada to Guinea, where Fatoumata (her daughter) risked being subjected to
Female Genital Mutilation.

After reviewing the case, the HRC found that Fatoumata did, in fact, face a real risk of being
subjected to FGM on return to Guinea. This was due to evidence that demonstrated the
widespread occurrence of FGM throughout Guinea, despite a legal prohibition of the act.
Diene also appeared to be the only family member opposed to the act and lacked the authority
to prevent it due to male authority within Guinean society.

For these reasons, the HRC decided that Canada’s deportation of Diene and Fatoumata would
violate article 77 of the ICCPR (the prohibition of cruel, inhuman or degrading treatment or
punishment). It also found that this deportation would violate article 24(1) 8 of the ICCPR
(right to protection as a minor) because Fatoumata was only 15 years old at the time of the
complaint.

CONCLUSION

The ICCPR was a trailblazer in the field of Human Rights enforcements; this is because the
Universal Declaration of Human Rights adopted in 1948 was majorly persuasive in nature
and didn’t have any binding powers as such. Therefore, the ICCPR was made with the intent
of bearing legal power, in the sense that those countries which sign and ratify the treaty, have
to then abide by its provisions and will be held liable for violation of those rights. The ICCPR

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Article 7. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In
particular, no one shall be subjected without his free consent to medical or scientific experimentation.
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Article 24(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 his status
as a minor, on the part of his family, society and the State.

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with its Protocols gives the individual right to raise his grievances relating to human rights
violations at international level.

Thus, human rights, though restricted, have become a reality for an individual in international
law. The comprehensive and extensive procedure of the human rights reporting and wide
publicity given to it has put solitary impact on the observance of human rights. Thus, the UN
has laid down an international standard in the field of human rights and the States have
gradually accepted the norms laid down in these covenants.

SOURCES

BOOKS

1. Prof. K.C. JOSHI, “International Law and Human Rights”, 4th Edition.

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WEBSITES

2. https://blogs.lse.ac.uk/vaw/int/treaty-bodies/international-covenant-on-civil-and-political-
rights/
3. https://blog.ipleaders.in/critical-analysis-covenants-1966/
4. www.ebcreader.com
5. http://www.2/ohchr.org/eng/bodies/hrc

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