The structure and content of the International Covenant on Civil and Political Rights
The original article: https://espchhelp.ru/koon/stati/4268-the-structure-and-content-of-the-international-covenant-on-civil-and-political-rights .
The Pact is divided into six main parts. Parts I and II contain a number of general provisions applicable to all rights provided for in the Covenant. Part III is the "core" of the Covenant, since it enshrines substantive individual rights.
The final part provides for the establishment of a Human Rights Committee, defines the supervisory functions of the Committee and regulates a number of technical issues. The individual parts are described in turn below.
Part I and II - General provisions The first two parts, which include articles 1-5, represent an important set of provisions that could be defined as provisions of a general or structural nature.
Article 1, included in Part I, guarantees the right to self-determination. This right differs from other Covenant rights in that this right is directly vested in "peoples" and not individuals. It is also the only right common to both Covenants, since article 1 of the International Covenant on Economic, Social and Cultural Rights has a similar wording. Although international law does not yet have a clear position on the right to self-determination, it is safe to say that a prerequisite for the full and genuine self-determination of a people is the exercise by its individual representatives of the full scope of the rights enshrined in this Covenant.
Part II includes articles 2-5. Article 2 is the most important, indeed the cornerstone of the Covenant. It provides that the State party undertakes to respect and ensure the rights recognized in the Covenant to all persons under its jurisdiction. With some exceptions, such as the right to vote, these rights apply not only to citizens, but also to all persons located on the territory of the State, and must be respected without any discrimination. If necessary, legislation should be adopted to adequately guarantee these rights. It is of fundamental importance that States parties have an obligation to provide remedies to persons whose rights under the Covenant have been violated. As part of its jurisprudence, the Committee has interpreted this right to require an appropriate forum to consider a claim of violation of a Covenant right when it is "sufficiently substantiated to be considered in accordance with the Covenant". These remedies are usually provided by courts and administrative authorities. Without this right to ensure compliance with Covenant law by domestic authorities by providing remedies, the actual substantive rights enshrined in the Covenant would be largely devoid of their practical significance.
Further information on the scope of the obligation arising from this crucial article is contained in general comment No. 31 on the nature of the general legal obligation imposed on States parties to the Covenant (CCPR/C/74/CRP.4/Rev.6).
The treaty bodies and the authors of scientific commentaries have developed a three-level concept of obligations imposed by treaties on the participating States. The first obligation is respect for rights, which clearly obliges Governments to refrain from violating human rights. It is often also called a "negative" obligation, or an obligation not to resort to a specific action or practice. Its classic example is the obligation of the State to refrain from any use of torture or arbitrary deprivation of life. The second obligation to protect the exercise of rights goes further: the State party must not only refrain from violating human rights as such, but also protect everyone from violations of their rights by third parties, regardless of whether they are private individuals, corporations or other non-State actors. This may require positive action on the part of the State party, for example by establishing appropriate legislative or policy structures and allocating sufficient resources for their effective functioning. Thirdly, the State party should promote or implement individual rights, i.e. take the necessary measures to create the necessary and enabling environment in which the relevant rights can be fully realized. In this case, we are also talking about a "positive" obligation, which may require a State party to take significant measures, including the allocation of appropriate resources, to fulfill its obligations under the treaty. For example, in accordance with article 14, paragraph 3 (d), of the Covenant, the State party is obliged to provide every person with a lawyer "when the interests of justice so require" and to prevent overcrowding in prisons in implementation of the guarantee set out in article 10, paragraph 1, which refers to ensuring humane conditions of detention of persons deprived of liberty.
Article 3 of the Covenant provides for the equal right of men and women to enjoy all the rights provided for in the Covenant. In the Committee's opinion, article 26 in part III of the Covenant, which guarantees equality before the law and equal protection of the law without discrimination of any kind, including on the basis of sex, should be interpreted as providing the same protection, however, the importance of this issue for the drafters of the Covenant can be assessed already by virtue of its inclusion in the the first part of the Pact.
Article 4 of the Covenant recognizes that emergencies affecting a State party may make it difficult or impossible to guarantee certain rights in practice for a certain period of time. In this regard, article 4 clearly sets out clearly permissible limits for suspending the exercise of certain rights or derogating from them in order to prevent the possibility of any abuse. The main condition is that in the event of a threat to the life of the nation, an officially declared state of emergency must be imposed. The Human Rights Committee may, and if necessary, raise the question of whether this fundamental requirement was respected when the State decided to derogate from its obligations under the Covenant. Even if such a situation does arise, such measures should be taken to the extent that "the urgency of the situation requires it" at the time of the crisis. This is a high-level norm, and therefore the State party may be asked to demonstrate, to the satisfaction of the Committee, how it complies with it. In addition, regardless of the situation, there are a number of rights, including the rights to life and protection from torture, which cannot be derogated from under any circumstances. These rights are enshrined in article 4, paragraph 2. In more detail, issues arising in connection with article 4 are discussed in general comment No. 29 on derogation from obligations in connection with a state of emergency (CCPR/C/21/Rev.1/Add.11).
Part II of the Covenant concludes with article 5, which contains a general exclusionary provision, which states that nothing in the present Covenant can be interpreted as meaning the right to limit or eliminate any of its provisions and that a State party whose domestic law provides
a higher degree of protection than provided for in the Covenant cannot to use this circumstance as a pretext for limiting or derogating from the fundamental rights contained in the Covenant.
Part III - Substantive rights enshrined in the Covenant Part III is the basis of the Covenant. It lists the substantive rights and fundamental freedoms guaranteed by this treaty. These are articles that are usually referred to by individuals claiming violations of their rights enshrined in the Covenant, although in this regard it is also possible to refer to the provisions of Part I, which may be the basis for their interpretation.
Articles 6-11 can be considered basic provisions providing for the protection of human life, freedom and physical security. In addition, these provisions establish a narrow framework within which States parties that retain the death penalty can legally impose the death penalty. Specific prohibitions have been established in relation to torture, unauthorized medical experiments, slavery and forced labor. The same articles provide for human rights in conditions of deprivation of liberty, mainly as a result of arrest and detention. Articles 12 and 13 deal with issues of movement in connection with entry into, exit from, or movement within a State, and also contain specific rules regarding the expulsion of aliens.
Articles 14-16 define the procedure for treating a person during a trial. Article 14 guarantees the right to a fair trial in both criminal and civil cases; this right is of fundamental importance, especially given its close connection with the right to an effective remedy provided for in article 2. It establishes the rights to equality before the courts and to a fair trial in complaints settled in courts and tribunals, and provides for a number of additional protection measures during criminal proceedings.
Article 15 prohibits retroactive criminal punishment, and article 16 states that everyone has the right to recognition of his legal personality.
Articles 17-22 enshrine fundamental freedoms, the exercise of which must take place without unjustified outside interference. Article 17 establishes the right to privacy, article 18 - to freedom of thought and religion, article 19 - to freedom of opinion and expression (subject to the prohibitions on propaganda of war or national, racial or religious hatred enshrined in article 20); article 21 guarantees the right to peaceful assembly, and article 22 - the right to freedom of association, including the right to form trade unions.
Articles 23 and 24 recognize the special role of the family and address issues of marriage and children's rights. Article 25 of the Covenant is of particular importance because it enshrines the most important right to participate in political life, related to the right to vote and be elected in genuine periodic elections held on the basis of universal suffrage by secret ballot, as well as the right to participate in the conduct of public affairs and to have equal access to public service.
As noted above, along with articles 2 and 14, article 26 is of fundamental importance within the framework of the Covenant. It enshrines the right to equality before the law and to equal protection of the law in conditions of ensuring broad guarantees of non-discrimination. The Human Rights Committee interprets this provision broadly, referring it to all legal provisions, and not only to the norms enshrined in the Covenant. Thus, if a State party provides special benefits for an individual or a group of persons, they should be provided in a non-discriminatory manner. In other words, the differences established by law should be based on reasonable and objective motives, which can serve as a criterion to be evaluated by the Committee to determine whether they comply with this provision.
Part III of the Covenant concludes with article 27, which guarantees persons belonging to ethnic, religious or linguistic minorities the right to share their culture, religion or language with other members of the same group. Although formally formulated as an individual right, this provision, in essence, should be regarded as a group right protecting the totality of individuals.
Can the rights provided for in Part III be limited or restricted?
A number of the rights provided for in Part III are directly formulated in such a way that restrictions or limits may be applied to them, as a rule, established by law and necessary for specific listed purposes. Articles 17, 18, 19, 21, 22 and 25 directly allow for a certain form of restrictions.
In the event that a State party decides to limit or limit one of these rights within the established limits, this is allowed and does not constitute a violation of the relevant right.
Other rights, in particular those protecting against "arbitrary" actions on the part of the State, implicitly recognize as permissible certain reasonable measures taken by the State.
However, it should be emphasized that, in any case, the permissible limits are not so wide or unlimited as to allow the State party to actually emasculate a right, depriving it of practical meaning. The burden of proving the validity in such a case lies with the State party, which is obliged to demonstrate, including to the Committee, that certain restrictions meet the requirements of legality, necessity, reasonableness and legitimacy of the purpose. Some rights cannot be limited or limited under any circumstances, no matter how serious they may be. In other cases, a balance may be established between the right claimed by a person and the right that another person may have.
For example, in connection with the child's right to take the necessary protective measures in accordance with article 24, it may be necessary for the child to be removed from an unfavorable family environment, despite the fact that such separation from the family may contradict the parents' right to family protection provided for in article 23.
Another way to limit rights is a reservation.
A reservation is an official statement made by a State party at the moment when it becomes a party to a treaty and in which it refuses to apply one or more provisions in whole or in part within its jurisdiction. Unlike a number of other treaties, the Covenant does not say anything about the consequences of reservations. A reservation may be made on the basis of a general rule of international law enshrined in the Vienna Convention on the Law of Treaties, according to which it cannot be incompatible with the object and purpose of the treaty. The traditional criterion for the acceptability of a reservation is the reaction of other States parties that may object to a reservation made by another State party.
The Committee itself, as the body charged with monitoring the implementation of the Covenant, has assumed the authority to determine the compatibility of a reservation with the object and purpose of the Covenant and has expressed its opinion on this issue in relation to some States parties.
If the Committee considers a reservation incompatible, it "withdraws" it and applies the corresponding obligation to the State party in full. Although the possibility of making reservations may facilitate the accession of States to the treaty in the event that they do not want to fully assume the obligations arising from it, reservations are often regarded as an unwise political decision due to the fact that they may deprive some persons of their rights for reasons that are not entirely clear to other States parties or which are justified only for a certain period of time. That is why the Committee regularly calls on States parties to review their reservations with a view to withdrawing them. The Committee's approach to these issues is set out in more detail in general comment No. 24 on issues related to reservations (CCPR/C/21/Rev.1/Add.6).
Parts IV-VI - Monitoring of implementation and technical aspects of the Covenant
The remaining parts of the Covenant define the procedure for the establishment of the Human Rights Committee as a body to monitor the implementation of the treaty. Part IV, covering articles 28-45, contains provisions for the establishment of the Committee and defines its functions and procedures. These issues are discussed in more detail below. Part V of the Covenant, consisting of articles 46-47, provides protective provisions with regard to the Charter of the United Nations and, in connection with article 1, with regard to the inalienable right of peoples to freely possess and use their natural wealth and resources.
Articles 48-53 of the final Part VI contain standard contractual provisions concerning the mechanism of accession, notification and amendment. Article 50 provides that all the provisions of the Covenant apply to all parts of the federal States without restrictions or exceptions. This is important for States whose domestic law reserves exclusive powers in some areas to the state or province, rather than to federal authorities. In such cases, the federal authorities, which normally represent the State party before the Committee, should take such measures as are necessary to ensure the full application of the Covenant in their territory and ensure that the necessary remedies are available in case of violations. In this sense, article 50 is a confirmation of the well-known principles of international law, according to which the international responsibility of a State arises in the event of actions or omissions of its authorities at all levels, regardless of whether they are national, provincial or local, and that the internal law of a State is not a ground for violation of a contractual obligation.
Can the Covenant be rejected or denounced by a State that no longer wishes to be bound by its provisions? What is the situation with the new States that arise as a result of the collapse of the old State that was a party to the treaty?
Unlike many treaties, the final provisions of the Covenant do not provide for the possibility of denunciation of the treaty, allowing the State party to withdraw from the treaty regime. In these circumstances, the Committee is of the view that, in light of the special nature of human rights treaties, including the Covenant, which enshrine fundamental rights and freedoms for persons under the jurisdiction of the State party, these rights and freedoms cannot be waived once they have been confirmed.
Therefore, if a State has ratified the Covenant, it cannot renounce its obligations by denouncing the treaty. Similarly, States parties cannot denounce the Second Optional Protocol, which also does not contain any denunciation provisions. In contrast, the first Optional Protocol provides for a specific denunciation procedure.
In this regard, the problem arises of the continuity of the application of the Covenant in a situation where a State party to the Covenant splits into a number of successor States. Applying a similar approach, the Committee has come to the view that the successor State inherits obligations under the Covenant from the predecessor State. For example, the Committee considers that Kazakhstan is bound by the Covenant as a successor State to the USSR, which was a State party at the time of its dissolution. As a rule, such a situation does not arise, since the successor States confirm the applicability of the Covenant in their jurisdiction, in particular by making a declaration of succession.
Similarly, when the United Kingdom and Portugal, as States parties to the Pact, returned sovereignty over Hong Kong and Macao to China, China agreed to apply Covenant obligations in those territories, even though it was not itself a State party to the Pact.
The original article: https://espchhelp.ru/koon/stati/4268-the-structure-and-content-of-the-international-covenant-on-civil-and-political-rights .
