HUMAN RIGHTS 1

WEEK 4

SR. REGINA IGNATIA AFLAH

ICCPR OPTIONAL PROTOCOL
 FIRST OPTIONAL PROTOCOL
INDIVIDUAL COMMUNICATION
• First Optional Protocol: Individual
Communication to the HR Committee is
provided for under the First Optional Protocol.
• This Protocol represented a breakthrough in
that it provides an avenue for individuals to
seek redress for alleged violations of ICCPR
rights by a state party
 ARTICLE 1 OF THE OPTIONAL
PROTOCOL
• Article 1 of the Optional Protocol provides that
the state party: recognises the competence of the
Committee to receive and consider
communications from individuals subject to its
jurisdiction who claim to be victims of violations
by that State Party of any of the rights set forth in
the Covenant.
• Communications under the Optional Protocol
must be submitted to the Secretariat of the Office
of the High Commissioner of Human Rights.
 ARTICLE 1 OF THE OPTIONAL
PROTOCOL
• There is no specific time limit within which a claim
must be made but long delays have to be
accompanied by a justifying explanation. Other
criteria are:
– The complaint must not be anonymous.
– All domestic remedies must be exhausted.
– An ICCPR right allegedly violated must be
identified and substantiated.
– The matter should not be before any other
international forum.
 SECOND OPTIONAL
PROTOCOL:
ABOLITION OF DEATH
• The Second Optional Protocol to the ICCPR
PENALTY
entered into force on 11 July 1991.
• Essentially, it reinforces Article 6 of the ICCPR
and seeks to abolish the death penalty.
• The Protocol is a simple direction to
contracting states ‘to take all necessary
measures to abolish the death penalty within
their jurisdiction’.
 SECOND OPTIONAL
PROTOCOL:
ABOLITION OF DEATH
• Article 2 of the Protocol
PENALTYspecifically prohibits any
reservations to the Protocol, the only exception being
reservations that provide for the application of the
death penalty in time of war pursuant to a conviction
for a most serious crime of a military nature
committed during wartime.
• Without prejudice to such reservations, no
derogations are permitted. The provisions of the
Second Optional Protocol constitute additional
provisions to the ICCPR for those states party to the
Protocol.
HUMAN RIGHTS COMMITTEE
 HUMAN RIGHTS COMMITTEE
• Article 28 of the ICCPR provided for the
establishment of the Human Rights Committee (HR
Committee).
• The HR Committee is made up of 18 experts
nominated and elected by contracting parties.
Members are elected for a four-year term and are
eligible for re-election.
• In the election process, which is done by secret
ballot by the state’s parties to the ICCPR, cognisance
is given to reflecting an equitable geographical
distribution in the membership.
 HUMAN RIGHTS COMMITTEE
• The HR Committee is the monitoring body in
respect of the ICCPR.
• It is the principal body in the ICCPR reporting
system in that it considers the reports produced by
states and forwards its observations on each report
to the relevant state.
 REPORTING SYSTEM
• Pursuant to Article 40 of the ICCPR,
contracting parties are required to submit
periodic reports on the measures they have
adopted giving effect to the rights contained
in the ICCPR and the progress made in them
within one year of the entry into force of the
ICCPR for the states parties concerned; and
thereafter whenever the HRC so request.
 REPORTING SYSTEM
• The aim of the reporting system is to provide
a state with the opportunity to engage in
dialogue with the HR Committee indicating
how domestic, legislative and administrative
standards and practices comply with the
rights spelled out in the treaty.
 REPORTING SYSTEM
• In 2010 the HR Committee, following a
review of its periodic reporting procedures,
initiated a new system whereby it sends
states a list of issues (Lists of Issues Prior to
Reporting (LOIPR)) and considers their
written replies in lieu of a periodic report.
• According to the HR Committee this change is
advantageous to both.
 INTER-STATE APPLICATION
• Article 41 of the ICCPR is optional and a
state’s acceptance of it is independent of a
state’s ratification of the ICCPR. Article 41
allows for inter-state applications, provided
the necessary conditions have been met.
These conditions are:
– reciprocity – both states, the one alleging the
violation and the alleged offender, must have
accepted the Article 41 procedure
– the exhaustion of local remedies.
 DEROGATIONS
• The rights contained in the ICCPR may be
temporarily restricted/ limited by derogation
in times of recognised state emergency.
• A state emergency is one ‘which threatens
the life of the nation and the existence of
which is officially proclaimed’ Article 4.
• Notwithstanding this concession to ‘public
emergency’, Article 4(2) prohibits derogation
from certain rights in any circumstances.
 DEROGATIONS
• These include the rights protected under Articles
6, 7, 8(i) and (ii), 11, 15, 16 and 18.
• The HR Committee used General Comment No.
5 to highlight its view that measures taken
under Article 4: are of an exceptional and
temporary nature and may only last as long as
the life of the nation concerned is threatened
and that, in times of emergency, the protection
of human rights becomes all the more
important, particularly those rights from which
no derogations can be made.
 DEROGATIONS
• The Committee also considers that it is
equally important for States parties, in times
of public emergency, to inform the other
States parties of the nature and extent of the
derogations they have made and of the
reasons therefore and, further, to fulfil their
reporting obligations under Article 40 of the
Covenant by indicating the nature and extent
of each right derogated from together with
the relevant documentation.
 DEROGATIONS
• General Comment No. 5, Derogation of
Rights (Article 4), 31 July 1981.
• Any state invoking the right of derogation is
required to immediately inform the other
states parties, by way of the Secretary-
General of the UN, of the provisions being
suspended and the reasons for the
suspension.
• The state is also required to advise as to
when it terminates such derogation
 DEROGATIONS
• A further safeguard is built in under Article 5 by
providing that nothing in the ICCPR confers a
right to limit or destroy any of the rights
protected by the ICCPR.
• In General Comment No. 29, States of
Emergency (Article 4) (CCPR/C/21/Rev.1/Add.11,
31 Aug 2001), the HR Committee further fleshed
out the ‘exceptional’ nature of derogation and
stipulated that before a state party can invoke
Article 4, two fundamental conditions must be
fulfilled.
 DEROGATIONS
• Firstly, the situation must amount to a public
emergency which threatens the life of the
nation, and
• Secondly the state must have officially
proclaimed a state of emergency.
• The latter requirement is essential for the
maintenance of the principles of legality and
the rule of law at times when they are most
needed.
 DEROGATIONS
• General Comment No. 29 is a much longer
and more detailed one than General
Comment No. 5, and the HR Committee
stipulated that any measures derogating from
the ICCPR must be limited to the extent
strictly required by the exigencies of the
situation.
• General Comment No. 29 makes reference to
specific articles of the ICCPR and reinforced
the limits on derogations from them;
 DEROGATIONS
• For example, as Article 6 of the Covenant is
non-derogable in its entirety, any trial leading
to the imposition of the death penalty during
a state of emergency must conform to the
provisions of the Covenant, including all the
requirements of Articles 14 and 15.
• Safeguards related to derogation, as
embodied in Article 4 of the Covenant, are
based on the principles of legality and the
rule of law inherent in the Covenant as a
 DENUNCIATIONS
• It was also by way of General Comments that
the HR Committee addressed the possibility
of denunciation of the ICCPR. In General
Comment No. 26, Continuation of Obligations
(CCPR/C/21/Rev.1/Add.8/ Rev.1, 08 Dec
1997) the HR Committee recognised that the
ICCPR:
• …does not contain any provision regarding its
termination and does not provide for
denunciation or withdrawal.
 DENUNCIATIONS
• Consequently, the possibility of termination,
denunciation or withdrawal must be considered
in the light of applicable rules of customary
international law which are reflected in the
Vienna Convention on the Law of Treaties.
• On this basis, the Covenant is not subject to
denunciation or withdrawal unless it is
established that the parties intended to admit
the possibility of denunciation or withdrawal or
a right to do so is implied from the nature of the
treaty.
 DENUNCIATIONS
• The rights enshrined in the Covenant belong to
the people living in the territory of the State
party.
• The Human Rights Committee has consistently
taken the view, as evidenced by its long-standing
practice, that once the people are accorded the
protection of the rights under the Covenant,
such protection devolves with territory and
continues to belong to them, notwithstanding
change in Government of the State party.
 RESERVATIONS
• The matter of reservations under the ICCPR
and the First Optional Protocol is governed by
international law: see Article 19(3) of the
Vienna Convention on the Law of Treaties. In
addressing reservations to the ICCPR, the HR
Committee again set out its position by way
of a General Comment.
• In General Comment No. 24 the HR
Committee addressed relevant issues of
international law and human rights policy.
 RESERVATIONS
• The HR Committee spelled out the object and
purpose of the ICCPR as being to create
legally binding standards for human rights by
defining certain civil and political rights and
placing them in a framework of obligations
which are legally binding for those states that
ratify; and to provide an efficacious
supervisory machinery for the obligations
undertaken.
 RESERVATIONS
• The HR Committee acknowledged that the
possibility of entering reservations could
encourage states to become parties but
emphasized that it was desirable in principle
that states accept the full range of
obligations, because the human rights norms
are the legal expression of the essential rights
that every person is entitled to as a human
being.
 RESERVATIONS
• No reservation is admissible to the present
Protocol, except for a reservation made at
the time of ratification or accession that
provides for the application of the death
penalty in time of war pursuant to a
conviction for a most serious crime of a
military nature committed during wartime.
OPTIONAL PROTOCOL TO THE
ICESCR
 OPTIONAL PROTOCOL TO THE
ICESCR
• Initially, neither individuals nor groups could
submit formal complaints to the Committee.
• The absence of a complaint’s procedure
precluded the Committee from developing any
jurisprudence or case-law, and made it less
likely that those alleging violations of their
ICESCR rights would obtain redress.
 OPTIONAL PROTOCOL TO THE
ICESCR
• A number of arguments were advanced in
favour of adopting a complaints procedure
under the ICESCR, one such being that the
introduction of a complaints procedure would
encourage the introduction of similar
remedies at the domestic level.
 OPTIONAL PROTOCOL TO THE
ICESCR
• An open-ended working group was
established to consider the elaboration of an
Optional Protocol; intergovernmental
negotiations started in 2004 and concluded in
2008 when the Human Rights Council adopted
the text of the Optional Protocol.
• On receipt of approval from the UN General
Assembly, the Optional Protocol was opened
for signature on 24 September 2009.
 OPTIONAL PROTOCOL TO THE
ICESCR
• The 10 signature was received on 5 February
th

2013 and the Optional Protocol entered into

force on 5 May 2013.
• The Optional Protocol introduced three
marked changes to the work of the
Committee:
– The Committee has the competence to
receive communications from individuals or
groups of individuals alleging violations of
their rights under the ICESCR.
 OPTIONAL PROTOCOL TO THE
ICESCR
• It has the competence to receive inter-state
complaints.
• Acceptance of the Committee’s competence in
this regard is optional. Its operation is
dependent on reciprocity, that is, only states
parties that have agreed to be bound by this
provision are able to bring complaints under
it, and they will only be able to bring
complaints against states parties that have
also agreed to the provision.
 OPTIONAL PROTOCOL TO THE
ICESCR
• It has the competence to undertake inquiries
when it receives reliable information
indicating grave or systematic violations by a
state party. However, that state party must
have made a specific declaration accepting the
Committee’s mandate to undertake such
inquiries.
• As of May 2015 the Optional Protocol has not
been used and, as such, the Committee has
yet to generate any body of jurisprudence.
 NEXT WEEK

SOME CORE CONVENTIONS

THANK YOU!!
regina@mountcrestuniversity.edu.gh

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