How To Complain About Human Rights Treaty Violations

The Four Principal UN Human Rights Treaties Containing Complaint Mechanisms - Overview

a) The International Covenant on Civil and Political Rights

i) Object

The International Covenant on Civil and Political Rights (CCPR) seeks to guarantee a broad range of universal human rights across a wide range of human endeavour. The preamble to the CCPR recognizes that the rights derive from the inherent dignity of the human person. The CCPR sets out certain "civil and political" rights.

The Human Rights Committee is the treaty body associated with the CCPR.

ii) Adoption and Entry into Force

The CCPR was adopted by the UN General Assembly on 16 December 1966, together with an Optional Protocol allowing individuals to submit complaints. Both the CCPR and the Optional Protocol entered into force on 23 March 1976. For any state ratifying the Covenant or the Optional Protocol after 23 December 1976, the instruments enter into force for that state three months after the date of deposit of its instrument of ratification. The UN Secretary-General, Office of Legal Affairs, acts as depository.

A Second Optional Protocol associated with the CCPR was subsequently adopted which provided for the abolition of the death penalty. It was adopted on 15 December 1989, and entered into force on 11 July 1991. For any state ratifying the Second Optional Protocol after 11 April 1991, it entered into force for that state three months after the date of deposit of its instrument of ratification.

iii) Obligations Undertaken by States Parties

When a state becomes a party to the CCPR it undertakes to immediately guarantee to all individuals in its territory or under its jurisdiction, without any discrimination, all the rights specified in the CCPR (article 2(1)). These include both collective rights (such as self-determination), and individual rights (such as freedom of expression).

States parties also undertake to:

• adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the CCPR (article 2(2));



• ensure to persons who claim their rights have been violated the opportunity to have the existence of such violation determined by a competent authority and, in cases of violation, an effective and enforceable remedy ordered (articles 2 (3));



• develop the possibility of judicial remedies (article 2(3)(b)).

States parties also undertake to ensure the equal right of men and women to the enjoyment of the rights guaranteed in the CCPR (article 3).

iv) Summary of Substantive Rights

The following rights are guaranteed by the CCPR:

• Right of self-determination
  
  The right of all peoples of self-determination, including a right to determine freely political status and dispose of natural wealth and resources (article 1).



• Right to life
  
  The right to life, including restrictions on the circumstances in which capital punishment may be imposed (article 6).



• Prohibition of torture
  
  The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, including the right not to be subjected to non-consensual medical or scientific experimentation (article 7).



• Prohibition of slavery or servitude
  
  The right not to be held in slavery or servitude, or (subject to certain express exceptions) to be required to perform forced or compulsory labour (article 8).



• Prohibition of arbitrary arrest or detention
  
  The right to liberty and security of the person, including a prohibition on arbitrary arrest or detention and on deprivations of liberty other than by law (article 9(1)).



• Rights upon arrest or detention
  
  The rights of persons who are arrested or detained:



• to be informed of the reason for an arrest and of any charges (article 9(2);



• to be brought promptly before a judicial officer (article 9(3));



• to trial within a reasonable time or release (article 9(3));



• to take proceedings before a court to have the lawfulness of an arrest or detention determined without delay, habeas corpus (article 9(4));



• to obtain compensation if unlawful arrest or detention is established (article 9(5)).



• Rights of prisoners
  
  Persons deprived of liberty are to be treated with humanity and with respect for the inherent dignity of the human person (article 10). The essential aim of the prison system should be reform and rehabilitation, and the CCPR specifies certain special protections that attach to juvenile prisoners and to unconvicted prisoners.



• Imprisonment for breach of contract
  
  The prohibition of imprisonment for inability to fulfill a contractual obligation (article 11).



• Freedom of movement
  
  The right to freedom of movement, including the freedom to choose a place of residence, the right to leave any country, and the right to re-enter one's own country (article 12).



• Rights to due process in cases of deportation
  
  Aliens who are lawfully within a state's territory have a right to due process of law before being expelled from the territory (article 13).



• Right to fair trial
  
  Individuals have the right to equality before courts and tribunals and, in both criminal and civil proceedings, to a fair and public hearing by a competent, independent and impartial tribunal (article 14(1)).



• Protections for criminal defendants
  
  The rights of persons charged with criminal offences include the right:



• to be presumed innocent until proven guilty (article 14(2));



• to be informed of the nature and cause of the charge (article 14(3)(a));



• to have adequate time and facilities to prepare a defence (article 14(3)(b);



• to be tried without undue delay (article 14(3)(c));



• to be present at the trial and defend oneself; and to have legal assistance, in certain circumstances, paid for by the State (article 14(3)(d));



• to examine witnesses against one, and to obtain and examine witnesses on one's behalf (article 14(3)(e));



• to have the free assistance of an interpreter, if necessary (article 14(3)(f));



• not to be compelled to incriminate oneself (article 14(3)(g));



• to have an appropriate procedure for juvenile offenders (article 14(4));



• to have a review of one's conviction or sentence by a higher tribunal (article 14(5));



• to compensation for a wrongful conviction in certain circumstances (article 14(6));



• not to be tried twice for the same offence (article 14(7)).



• Non-retrospectivity
  
  The right not to be held guilty for any criminal offence that did not constitute a criminal offence at the time it was committed, nor given a heavier penalty than was applicable at the time an offence was committed (article 15).



• Recognition as a person before the law
  
  The right to recognition everywhere as a person before the law (article 16).



• Privacy and reputation
  
  The right not to be subject to arbitrary or unlawful interference with privacy, family, home or correspondence, nor to unlawful attacks on one's honour or reputation (article 17).



• Freedom of thought, conscience and religion
  
  The right to freedom of thought, conscience and religion (article 18)).



• Freedom of opinion and expression
  
  The right to hold opinions without interference and to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds (article 19).



• Prohibition of hate speech
  
  The obligation on states parties to prohibit war propaganda and advocacy of national, racial or religious hatred (article 20).



• Peaceful assembly
  
  The right to peaceful assembly (article 21).



• Freedom of association
  
  The right to freedom of association including the right to form and join trade unions (article 22).



• Protection of the family
  
  The right to protection of the family as the natural and fundamental group unit of society (article 23(1)). The right to marry and to be protected against forced marriage (article 23(2) & (3)). The equality of spouses both during marriage and at its dissolution (article 23(4)).



• Children's rights
  
  The right of children to special protection from the state, including the right to a name and a nationality (article 24).



• Participation in public life
  
  The right to participate in public affairs; to vote and to be elected through genuine, periodic and free elections; and to have access to the public service (article 25).



• Equality and Freedom from discrimination
  
  The rights to equality before the law and to equal protection of the law, and freedom from discrimination on grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (article 26).



• Minority rights
  
  The right of persons belonging to ethnic, religious or linguistic minorities, in community with others, to enjoy their culture, profess and practice their religion or use their language (article 27).

Rights not protected

At the same time, there are some significant omissions which are covered in other international instruments directed at similar rights. Examples of rights not specifically protected by the CCPR include the right to property, to acquire a nationality (except in the context of children), and the right to strike.

v) The Second Optional Protocol

• not to execute any person within their jurisdiction (article 1(1)); and



• to take all necessary measures to abolish the death penalty within their jurisdiction (article 1(2)).

The Second Optional Protocol is a treaty in its own right, which is open to ratification or accession by all states parties to the CCPR (article 7).

The rights guaranteed by the Second Optional Protocol apply as if they were additional provisions to the CCPR (article 6).

The only kind of reservation that is permitted to the Second Optional Protocol is one providing 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 (article 2).

vi) Limitations on Rights

The rights set forth in the CCPR can only be limited to the extent specifically provided for in the CCPR (article 5(1)). The Human Rights Committee, the treaty body associated with the CCPR, considers whether limitations imposed by a state are justified in the context of its examination of state party reports (article 40) and consideration of communications under the Optional Protocol.

Some of the articles in the CCPR, which set out the substantive rights, also set out carefully defined circumstances in which states parties are entitled to restrict the exercise of those rights in order to accommodate other societal interests.

The societal interests that are accommodated in this way by the CCPR are as follows:

• National security
  
  The exact circumstances in which rights can be restricted in the interests of national security differ from right to right. Usually, the restriction must be provided by law, and be necessary in a democratic society in the interests of national security. It is necessary to consult the text of the CCPR and the particular language of each limitation clause associated with a particular right.
  
  The following rights can be restricted in the interests of national security:



• freedom of movement (article 12(3));



• right of legal aliens to due process before being expelled (article 13);



• publicity of court proceedings, as protected by the ability of the press and the public to attend court hearings (article 14(1));



• freedom of expression (article 19(3));



• freedom of peaceful assembly (article 21);



• freedom of association (article 22(2)).



• Public safety
  
  The exact circumstances in which rights can be restricted in the interests of public safety differ from right to right. Usually, the restriction must be provided by law, and be necessary in a democratic society in the interests of public safety. It is necessary to consult the text of the CCPR and the particular language of each limitation clause associated with a particular right.
  
  The following rights can be restricted in the interests of public safety:



• freedom to manifest religion or belief (article 18(3));



• freedom of peaceful assembly (article 21);



• freedom of association (article 22(2)).



• Public order
  
  The exact circumstances in which rights can be restricted in the interests of public order differ from right to right. Usually, the restriction must be provided by law, and be necessary in a democratic society in the interests of public order. It is necessary to consult the text of the CCPR and the particular language of each limitation clause associated with a particular right.
  
  The following rights can be restricted in the interests of public order:



• freedom of movement (article 12(3));



• publicity of court proceedings, as protected by the ability of the press and the public to attend court hearings (article 14(1));



• freedom to manifest religion or belief (article 18(3));



• freedom of expression (article 19(3));



• freedom of peaceful assembly (article 21);



• freedom of association (article 22(2)).



• Public health
  
  The exact circumstances in which rights can be restricted in the interests of public health differ from right to right. Usually, the restriction must be provided by law, and be necessary in a democratic society in the interests of the protection of public health. It is necessary to consult the text of the CCPR and the particular language of each limitation clause associated with a particular right.
  
  The following rights can be restricted in the interests of protection of public health:



• freedom of movement (article 12(3));



• freedom to manifest religion or belief (article 18(3));



• freedom of expression (article 19(3));



• freedom of peaceful assembly (article 21);



• freedom of association (article 22(2)).



• Morals
  
  The exact circumstances in which rights can be restricted in the interests of morals differ from right to right. Usually, the restriction must be provided by law, and be necessary in a democratic society in the interests of the protection of morals. It is necessary to consult the text of the CCPR and the particular language of each limitation clause associated with a particular right.
  
  The following rights can be restricted in the interests of protection of morals:



• freedom of movement (article 12(3));



• publicity of court proceedings, as protected by the ability of the press and the public to attend court hearings (article 14(1));



• freedom to manifest religion or belief (article 18(3));



• freedom of expression (article 19(3));



• freedom of peaceful assembly (article 21);



• freedom of association (article 22(2)).



• Rights and freedoms of others
  
  The exact circumstances in which rights can be restricted in the interests of the protection of the rights and freedoms of others differ from right to right. Usually, the restriction must be provided by law, and be necessary in a democratic society in the interests of the protection of the rights and freedoms of others. It is necessary to consult the text of the CCPR and the particular language of each limitation clause associated with a particular right.
  
  The following rights can be restricted in the interests of protecting the rights and freedoms of others:



• freedom of movement (article 12(3));



• freedom to manifest religion or belief (article 18(3));



• freedom of expression (article 19(3));



• freedom of peaceful assembly (article 21);



• freedom of association (article 22(2)).



• Privacy
  
  The right to a public trial and the ability of the press and the public to attend court hearings (article 14(1)), can be restricted to the extent required by the interests of the private lives of the parties.



• Interests of justice
  
  The right to a public trial and the ability of the press and the public to attend court hearings (article 14(1)), can be restricted to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.



• Interests of juveniles
  
  The publicity of court proceedings, through publication of all court judgments (article 14(1)), can be restricted in the interests of juvenile persons.



• Proceedings concerning matrimonial disputes or the guardianship of children
  
  The publicity of court proceedings, through publication of all court judgments (article 14(1)), can be restricted where the proceedings concern matrimonial disputes or the guardianship of children.



• Recognition given to special duties and responsibilities
  
  The CCPR recognizes that the right to freedom of expression (article 19(2)) carries with it special duties and responsibilities.



• Armed forces and police
  
  The right to freedom of association (article 22) can be limited by lawful restrictions placed on members of the armed forces and police.



• Exceptional circumstances
  
  The right of unconvicted prisoners to be segregated from, and treated differently from, convicted persons (article 10(2)) can be restricted in "exceptional circumstances."



• Limitations derived from the language of the rights themselves
  
  Some rights are defined in a way that involves limitations. For example, an arrest under article 9(1) is only prohibited if it is "arbitrary", and delay in bringing a person to trial under article 14(3)(c) is only prohibited if it is "undue". It is therefore important to recognize limitations which might be imposed by the definition of the right itself.

vii) Derogations

In addition to the permissible limitations on certain specific rights, the CCPR sets out limited circumstances in which states parties are entitled to derogate from - meaning suspend - the enjoyment of the rights contained in the CCPR in times of official public emergency (article 4).

Before a state party may take measures derogating from its obligations under the CCPR, the following conditions must be fulfilled:

• There must be a public emergency which threatens the life of the nation;



• The existence of such a public emergency must be officially proclaimed;



• The derogation must only be to the extent strictly required by the exigencies of the situation;



• The derogation must not be inconsistent with the state party's other obligations under international law;



• The derogation must not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

In accordance with article 4 of the CCPR, some rights guaranteed by the CCPR are non- derogable. They cannot be restricted, even in cases of public emergency. The non-derogable rights are as follows:

• The right to life (article 6);



• Torture and cruel or inhuman punishment (article 7);



• Slavery and involuntary servitude (article 8(1) and (2));



• Imprisonment for breach of contract (article 11);



• The rule against retrospective criminal legislation (article 15);



• Recognition before the law (article 16);



• Freedom of thought, conscience and religion (article 18).

The obligation of states parties to the second Optional Protocol not to execute any person within their jurisdiction (article 1(1)) is also non-derogable (article 6 to the second Optional Protocol).

viii) Reservations

When ratifying or acceding to a treaty, a state may formulate conditions which are referred to as reservations, understandings or interpretative declarations, by which it limits the obligations it is prepared to assume. Such statements are deposited with the depository, (the UN Secretary General, Office of Legal Affairs) who forwards them to all other states parties for comment. In considering the extent of the obligations undertaken by any state party to the Covenant it is therefore necessary to consider whether the state party has made any reservations.

However, not all reservations are valid and succeed in limiting a state's obligations under the treaty. In general, a reservation will not be valid if it is incompatible with the object and purpose of the treaty.

States parties sometimes object to the reservations formulated by new states parties as incompatible with the object and purpose of the treaty. No reservation has yet been rejected by virtue of the objection of other states parties.

Nevertheless, in the course of considering communications and state reports, the Human Rights Committee itself must frequently decide on the application and scope of reservations. In some cases the Committee has expressed the view that a reservation is invalid as against the object and purpose of the treaty. This occurred, for example, in the Committee's consideration of the reservation of Trinidad and Tobago to the Optional Protocol which purported to exclude persons under sentence of death from availing themselves of the procedure. The Committee has laid down the competence to evaluate, and if necessary reject, reservations in its General Comment No. 24. Hence, if the Committee receives a complaint which might be affected by a reservation, it may still consider the complaint if it believes that the reservation is incompatible with the object and purpose of the CCPR.

The Committee's concluding observations on a state party's reports should be examined for possible comments on that state party's reservations.

ix) The Monitoring Body/Treaty Body: The Human Rights Committee

The CCPR provides for the establishment of a Human Rights Committee to monitor the implementation of the Covenant's provisions by states parties.

The Human Rights Committee is composed of 18 independent experts, nominated and elected by state parties to the CCPR, but intended to serve in their personal capacity.

The Human Rights Committee is engaged in the following tasks:

• Examination of state reports States parties are required to submit reports on the measures they have adopted to give effect to the rights recognized in the CCPR, the progress made in the enjoyment of those rights, and any factors or difficulties that have affected the implementation of the CCPR (article 40).



• Consideration of individual cases (communications) Individuals may claim a violation of the CCPR by states parties that have ratified the Optional Protocol.



• General Comments The Committee may make general comments based on the examination of state reports and individual communications. (Article 40(4))



• Consideration of state-to-state complaints States parties may declare that they recognize the competence of the Committee to receive and consider communications to the effect that a state party claims that another state party is not fulfilling its obligations under the CCPR (article 41). However, no inter-state complaint has, in fact, ever been received by the Committee.

The Committee meets three times a year, with each session lasting three weeks. These sessions are normally held in March (at the United Nations Office Headquarters in New York), July and October/November (at the United Nations Office in Geneva). Prior to each session, a working group of the Committee meets for one week.

Staff and facilities for the performance of the Committee's functions are provided by the Secretary-General of the United Nations (article 36) through the Secretariat of the Office of the United Nations High Commissioner for Human Rights.

The Committee submits an annual report of its activities to the UN General Assembly (article 45). The report contains the concluding observations which the Committee makes about states parties in the context of reports, the decisions reached on individual cases, and any General Comments.

x) Number of Ratifying States

Over three-quarters of UN member states are now parties to the CCPR, more than half are parties to the Optional Protocol, and one-quarter are parties to the Second Optional Protocol. This figure changes frequently and can be updated online.