I wish to summarize, for legal research purposes of the readers, the salient parts of the following three major universal human rights instruments intended to support the 1947 UN Universal Declaration on Human Rights: (a) International Covenant on Civil and Political Rights, 1966, and its two Protocols, 1966 and 1989; (b) International Covenant on Economic, Social and Cultural Rights, 1966; and © Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
International Covenant on Civil and Political Rights, 1966,
and its two Protocols, 1966 and 1989
The International Covenant on Civil and Political Rights and the Optional Protocol recognizing “the competence of the Committee to receive and consider communications from individuals” were adopted by the General Assembly in 1966.
The Covenant established a Human Rights Committee, which has authority: (1) to review reports from the States parties; (2) to adopt General Comments on the meaning of the provisions of the Covenant; (3) under certain conditions to deal with inter-State communications; and lastly (4), to receive individual communications under the Optional Protocol.
In 1989, the General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
Under article 2 of the Covenant, each State party “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the ... Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
The legal duty to ensure their enjoyment implies an obligation to take positive steps to see to it that domestic laws are modified when necessary in order to comply with the State’s international legal obligations; and that these laws are effectively implemented in practice by all public organs and officials. States have a legal duty to modify their legislation so as to have it conform to their new international obligations. States have also to continue to ensure that their legal obligations are effectively implemented by all relevant organs, including all courts of law.
The Covenant and the International Covenant on Economic, Social and Cultural Rights proclaim the right of all peoples to self-determination, by virtue of which they “freely determine their political status and freely pursue their economic, social and
cultural development”.
The two Covenants provide that “all peoples may, for their own ends, freely dispose of their natural wealth and resources” and that “in no case may a people be deprived of its own means of subsistence”.
This provision on the right to self-determination should be read in the light of the Declaration on the Granting of Independence to Colonial Countries and Peoples, which was adopted by the United Nations General Assembly in 1960 and which equated “the subjection of peoples to alien subjugation, domination and exploitation” to a denial of human rights and a violation of the Charter of the United Nations (paragraph 1).
The following is a list of the rights guaranteed by the International Covenant on Civil and Political Rights:
1. the right to life – art. 6;
2. the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, including a prohibition on being subjected to medical or scientific experimentation without one’s free consent – art. 7;
3. the right to freedom from slavery, the slave-trade and servitude – art. 8(1) and (2);
4. the right to freedom from forced and compulsory labour – art. 8(3);
5. the right to liberty and security of person, including freedom from arbitrary arrest and detention – art 9;
6. the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person – art. 10;
7. prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation – art. 11;
8. liberty of movement and freedom to choose one’s residence – art. 12(1);
9. the right to be free to leave any country, including one’s own – art. 12(2);
10. the right not to be arbitrarily deprived of the right to enter one’s own country – art. 12(4);
11. certain legal safeguards against unlawful expulsions of aliens lawfully in the territory of a State party – art. 13;
12. the right to a fair hearing in criminal and civil cases by an independent and impartial tribunal – art. 14;
13. freedom from ex post facto laws and the retroactive application of heavier penalties than those that could be imposed when the crime was committed – art. 15;
14. the right to recognition as a person before the law – art. 16;
15. the right not to be subjected to arbitrary or unlawful interference with one’s privacy, family, home or correspondence or to unlawful attacks on one’s honour and reputation – art. 17;
16. the right to freedom of thought, conscience and religion – art. 18;
17. the right to freedom of opinion and of expression – art. 19;
18. prohibition of war propaganda and of advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility or violence – art. 20;
19. the right to peaceful assembly – art. 21;
20. the right to freedom of association – art. 22;
21, the right to marry freely, to found a family and to equal rights and responsibilities of spouses as to marriage, during marriage and at its dissolution – art. 23;
22. the right of the child to special protection without discrimination; the right to be registered upon birth and the right to a nationality – art. 24;
23. the right to popular participation in public affairs; the right to vote in periodic elections by universal and equal suffrage and secret ballot, as well as the right to have access to public service – art. 25;
24. the right to equality before the law and the equal protection of the law – art. 26;
25. the right of minorities to enjoy their own culture, religion and language – art. 27.
Some of the rights listed above, such as the right to freedom of movement (art. 12(3)), the right to manifest one’s religion or beliefs (art. 18(3)), the exercise of the rights to freedom of expression (art. 19(3)), to peaceful assembly (art. 21), and to freedom of association (art. 22(2)), can be limited for certain specifically defined objectives, such as national security, public order, public health and morals, or respect for the fundamental rights of others.
The limitations can only be lawfully imposed if they are provided or prescribed by law and are also necessary in a democratic society.
The criteria to determine whether the exercise of a right has been lawfully limited are:
1. the principle of legality, in that the restrictive measure must be based in law;
2. the principle of a legitimate aim in a democratic society;
3. the principle of proportionality, in that the interference with the exercise of the individual’s right must be necessary for the legitimate purpose or purposes.
It is not sufficient that the measure is simply reasonable or possibly advisable: it must be necessary.
The strict conditions that govern the right of the States parties to resort to derogations from their legal obligations under article 4 of the Covenant are:
1. The condition of a “public emergency which threatens the life of the nation”.
The State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation’s life, thus excluding minor or even more serious disturbances that do not affect the functioning of the State’s democratic institutions or people’s lives in general;
2. The condition of official proclamation.
The existence of a public emergency which threatens the life of the nation must be “officially proclaimed” (art. 4(1)).
The purpose is to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events;
3. The condition of non-derogability of certain obligations.
Article 4 (2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations.
These rights are: the right to life (art. 6), the right to freedom from torture or cruel, inhuman or degrading treatment or punishment (art. 7), the right to freedom from slavery, the slave-trade and servitude (art. 8(1) and (2)), the right not to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. 11), the prohibition of ex post facto laws (art. 15), the right to legal personality (art. 16) and, lastly, the right to freedom of thought, conscience and religion (art. 18).
Some rights may not be derogated from because they are considered to be “inherent to the Covenant as a whole”, e.g., the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4), the right to a fair trial for persons.
The Committee has further held under the Optional Protocol that “the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception”;
4. The condition of strict necessity.
The State party can only take measures derogating from its “obligations under the ... Covenant to the extent strictly required by the exigencies of the situation”.
The legislative measures taken must as such be strictly required by the exigencies of the emergency situation.
Any individual measure taken on the basis of that legislation must likewise be strictly proportionate.
In general, “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”.
5. The condition of consistency with other international legal obligations.
The Human Rights Committee is authorized to examine whether measures of derogation might be unlawful as being inconsistent with other international treaties or even international humanitarian law or customary international law.
6. The condition of non-discrimination.
The measures of derogation may not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin” (art. 4(1) in fine).
7. The condition of international notification.
A State party must fulfil the conditions set out in article 4(3) of the Covenant, by immediately submitting a notification of derogation to the other States parties through the Secretary-General.
In this notification it must describe “the provisions from which it has derogated and ... the reasons by which it was actuated”.
A second notification must be submitted “on the date on which it terminates such derogation”.
The implementation of the Covenant is monitored by the Human Rights Committee, which consists of eighteen members serving in their individual capacity (art. 28).
The monitoring takes three forms, namely, the submission of periodic reports, inter-State communications, and individual communications.
According to article 40 of the Covenant, the States parties “undertake to submit reports on the measures they have adopted which give effect to the rights” recognized therein and “on the progress made in the enjoyment of those rights” every five years.
Under article 1 of the Optional Protocol, a State Party thereto “recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant”.
However, according to article 2 of the Optional Protocol, individuals claiming violations of their rights must first exhaust all remedies available to them at the domestic level.
The Committee shall consider inadmissible any communication which is anonymous, or which it considers to amount to an abuse of the right of submission of communications or to be incompatible with the provisions of the Covenant (art. 3).
If the communication raises a serious issue under the Covenant, the Committee submits it to the State party concerned, which has the possibility to submit its written explanations within a period of six months.
The procedure before the Committee is therefore exclusively written and the discussions in the Committee on the communications take place behind closed doors (arts. 4-5).
At the end of its consideration of a communication, the Committee adopts its “Views” thereon, which are sent both to the State party and to the individual concerned (art. 5(4)).
In fine, the implementation mechanisms of the International Covenant on Civil and Political Rights are: (a) the reporting procedure (art. 40); (b) inter-State communications (art. 41); and
(c) individual communications (art. 1, Optional Protocol).
International Covenant on Economic, Social
and Cultural Rights, 1966
The International Covenant on Economic, Social and Cultural Rights was adopted by the United Nations General Assembly in 1966.
The Covenant establishes a reporting procedure on the measures the States parties have adopted and the progress made in achieving the observance of the rights contained in the Covenant (art. 16).
The United Nations Economic and Social Council is entrusted under the Covenant with the task of monitoring compliance by the States parties with their legal obligations under the Covenant.
Since 1987 this task has been carried out by the Committee on Economic, Social and Cultural Rights, which is not a treaty organ like the Human Rights Committee.
Each State party to the International Covenant on Economic, Social and Cultural Rights “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the ... Covenant by all appropriate means, including particularly the adoption of legislative measures” (art. 2(1)).
The International Covenant on Economic, Social and Cultural Rights recognizes the following rights:
1. the right to work, including the right to gain one’s living by work freely chosen or accepted – art. 6;
2. the right to enjoy just and favourable conditions of work, including fair remuneration for work of equal value without distinction of any kind – art. 7;
3. the right to form trade unions and join the trade union of one’s choice – art. 8;
4. the right to social security, including social insurance – art. 9;
5. protection and assistance to the family; marriage to be freely entered into; maternity protection; protection and assistance to children and young persons – art. 10;
6. right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions – art. 11;
7. the right to the highest attainable standard of physical and mental health – art. 12;
8. the right to education – art. 13;
9. the undertaking to develop detailed plans of action where compulsory primary education is not yet secured – art. 14;
10. the right to take part in cultural life, to enjoy the benefits of scientific progress and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author – art. 15.
The International Covenant on Economic, Social and Cultural Rights contains a general limitation in article 4, whereby the State may subject the enjoyment of the rights guaranteed by the Covenant “only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”.
Furthermore, limitations relating to the exercise of specific rights are also contained in article 8(1)(a) and (c), where the exercise of the right to form and join trade unions, as well as the right of trade unions to function freely, may be subjected to no restrictions other than “those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others”.
The enjoyment of the rights guaranteed by the International Covenant on Economic, Social and Cultural Rights may be subjected only to such limitations as are: (a) determined by law; (b) compatible with the nature of these rights; and (c) aimed at promoting the general welfare in a democratic society.
Under article 16 of the Covenant, the States parties undertake to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” therein, and it is the United Nations Economic and Social Council that is formally entrusted with monitoring compliance with the terms thereof (art. 16(2)(a)).
The reports submitted by the States parties are considered in public meetings and in the presence of representatives of the State party concerned. The discussion “is designed to achieve a constructive and mutually rewarding dialogue” so that the Committee members can get a fuller picture of the situation prevailing in the country concerned, thereby enabling them to make “the comments they believe most appropriate for the most effective implementation of the obligations contained in the Covenant”.
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 1984
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly on 10 December 1984. It entered into force on 26 June 1987. It created the Committee Against Torture, to supervise the implementation of the obligations of the States parties.
According to the Convention, “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”.
The Convention requires that “each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” (art. 2(1); emphasis added). It further specifies that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (art. 2(2)).
This is a restatement of already existing international human rights law.
The convention provides that “an order from a superior officer or a public authority may not be invoked as a justification of torture” (art. 2(3)). In other words, the principle of individual responsibility for acts of torture is clearly established.
The following provisions of the Convention detail the responsibilities of the States parties to prevent, punish, and remedy acts of torture:
1. “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” – art. 3(1);
2. “each State Party shall ensure that all acts of torture are offences under its criminal law” and the same shall apply to attempts to commit torture and acts that constitute “complicity or participation in torture”. It shall, moreover, “make these offences punishable by appropriate penalties which take into account their grave nature” – art. 4(1) and (2);
3. the States parties shall take the measures necessary to exercise their jurisdiction over the preceding offences and to submit the person alleged to have committed acts contrary to article 4 of the Convention to the “competent authorities for the purpose of prosecution” (arts. 5-7) and they shall moreover “afford one another the greatest measure of assistance in connection with criminal proceedings brought” in respect of any of these offences -art. 9;
4. “the offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties”, which also
“undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them” – art. 8;
5. the States parties shall further “ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement
personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment” – art. 10(1);
6. for purposes of prevention of torture, the States parties “shall keep under systematic review interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of persons subjected to any form” of deprivation of liberty – art. 11;
7. “each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed ... ” – art. 12;
8. each State party shall further ensure that any alleged victim of torture “has the right to complain to, and to have his case promptly and impartially examined by, its
competent authorities” – art. 13;
9. “each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible” – art. 14;
10. “each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made” – art. 15; and finally,
11. each State party also undertakes “to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1” of the Convention – art. 16. As is clear from this general description of the legal obligations incurred under this Convention, the question of torture and other cruel, inhuman or degrading treatment or punishment and the State’s actual response thereto is highly relevant to judges, prosecutors and lawyers, who must at all times be prepared to look for signs of the existence of such unlawful acts.
Prepared by:
Atty. Manuel J. Laserna Jr.
Laserna Cueva-Mercader Law Offices
Las Pinas City, Philippines
