By: D.W. Duke
Part II: The Optional Protocols of the ICCPR
The Optional Protocols of the ICCPR (International Covenant on Civil and Political Rights), are separate treaties from the ICCPR yet function much like addendums to the
ICCPR. The First Optional Protocol authorizes private persons to file complaints with the Human Rights Committee alleging violations of the ICCPR. Under the Optional Protocol the complaint may be filed only against those nations that have ratified the ICCPR. Prior to filing the complaint the Complainant is required to have exhausted all domestic remedies with the nation alleged to have violated the ICCPR. (Domestic remedies would refer to such acts as filing a discrimination action against one’s own government in that nation’s courts, or appealing an adverse order. In reality, many nations that routinely violate human rights have little or no internal remedies for aggrieved citizens.)
For a complaint to be considered under the Optional Protocol it cannot be a matter under examination in another procedure of internal investigation or settlement. See Optional Protocol, art. 3. Additionally, the complaint cannot be anonymous, violate the right of submission or be otherwise incompatible with any provision of the Covenant. See Optional Protocol, art. 5(2)(a). The State has two months to submit an objection to the admissibility of the written information of the complaint and the Complainant has a period of time, set by the Committee, to reply to the objection. If the State does not object to the admissibility of the communications and information, it has six months to prepare and submit its arguments of the case. See HRC, Rules of Procedure 91. The Committee prepares its findings and statement of decision based upon the written reports of the Complainant and the State respondent.
In 1989 the Committee established the office of the Special Rapporteur on New Communications to assess whether a new communication requires clarification or modification for admissibility or whether it should be referred to State parties to assess admissibility and substance. Special equitable authority exists in the Special Rapporteur where irreparable harm is likely to occur to the victim of the act alleged, in the absence of extrordinary relief. The Special Rapporteur may recommend admissibility or exclusion of the communication. If admissible, the case is examined by a subcommittee called a “Working Group” which makes a recommendation to the Committee. Decisions by the Committee are called “Views” and the individual members of the Committee may submit dissenting or concurring opinions. Although the Optional Protocols do not set forth any method of assuring that the States comply with the Views, the Special Rapporteur is charged with the responsibility to “follow up” with the States. Additionally, States are then required to state in their reports what measures have been taken to comply with the Views. The annual report of the Committee to the General Assembly contains a section on the “follow up” results focusing specifically on cases where the State failed to comply. The Special Rapporteur also meets in Geneva or New York with diplomats from the States out of compliance. At that time the Special Rapporteur attempts to persuade the diplomats to encourage their governments to comply. Because of the large number of admissible cases in recent years a large body of case law has developed that interprets and applies the ICCPR and the Protocols .
The Second Optional Protocol went into effect on July 11, 1991. The primary objective of this Protocol was the elimination of the death penalty. All nations that sign this Protocol agree to take the necessary measures to abolish the death penalty within that nation’s jurisdiction. There is an exception 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.”
Next: Enforcement Under the Convention on the Rights of the Child
Partial List of References:
1. United Nations Charter
2. United Nations Universal Declaration of Human Rights
3. United Nations Covenant on Economic, Social and Cultural Rights
4. United Nations Covenant on Civil and Political Rights (ICCPR)
5. The First Optional Protocol on the Covenant on Civil and Political Rights
6. The Second Optional Protocol on the Covenant on Civil and Political Rights
7. The United Nations International Covention on the Rights of the Child
8. J. Robinson, Human Rights and Fundamental Freedoms in the Charter of the United Nations: A Commentary (1946)
9. L. Sohn & T. Buergenthal, International Protection of Human Rights 556 (1973) and L. Henkin The Age of Rights 51 (1990)
10. D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights 300 (1994)
11. International Human Rights, 3d edition, Buergenthal,Shelton and Stewart, (2002) West Publishing Company
12. International Human Rights in Context, 2d edition, Steiner and Alston, (2000) Oxford University Press