The International Covenant on Civil and Political Rights: Conclusion and Implementation

The atrocities of the Second World War made the limits of relying solely on national protection of human rights a central issue in establishing the United Nations. After adoption of the Universal Declaration of Human Rights in 1948, the Commission on Human Rights continued drafting treaty-based guarantees. Debate focused on whether different rights should appear in one text and how implementation should be supervised.

In 1952, the General Assembly decided to prepare separate covenants on civil and political rights and on economic, social and cultural rights. The Commission on Human Rights completed drafts in 1954, followed by article-by-article consideration in the assembly's Third Committee. Jurist Christian Tomuschat noted the important role of developing countries in ending the prolonged negotiations and persuading Eastern and Western states to accept the texts.

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On December 16, 1966, the General Assembly in New York adopted the International Covenant on Civil and Political Rights by 106 votes to none, through Resolution 2200 A (XXI). This adopted a multilateral text; it did not mean every country voting in favor completed ratification that day.

The first signing ceremony took place at UN Headquarters on December 19. Costa Rica signed that day but deposited its ratification only on November 29, 1968, illustrating the distinction between signature and ratification. Under Article 49, the covenant entered into force three months after deposit of the thirty-fifth instrument of ratification or accession. That date was March 23, 1976, more than nine years after adoption. Later-joining states had their own entry-into-force dates calculated under the treaty.

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Article 1 recognized peoples' right to self-determination, followed by nondiscrimination and equality between women and men as shared principles. Substantive provisions covered life, personal liberty, fair trial, thought and religion, expression and assembly, and protected minority members' shared enjoyment of culture, religion and language. Article 25 specifically guaranteed political rights including participation in public affairs, voting and election to office.

These provisions required concrete institutional safeguards. Article 9, for example, prohibited arbitrary arrest and detention and allowed detained persons to seek judicial review of lawfulness. Article 14 made independent and impartial tribunals, the presumption of innocence and criminal-defense guarantees international obligations. They supplied shared standards for examining domestic law and enforcement.

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Article 2 required states parties to respect and ensure covenant rights, adopt legislative or other necessary measures where existing arrangements were insufficient, and provide effective remedies. State responsibility therefore extended beyond refraining from direct violations to establishing procedures for complaints, decisions on remedies and enforcement of those remedies.

The covenant did not protect every right in exactly the same way. Restrictions on expression required a legal basis and had to satisfy specified necessity conditions. In officially proclaimed emergencies threatening the life of the nation, Article 4 allowed derogations strictly required by the situation, while prohibiting specified discrimination and identifying nonderogable provisions, including the right to life and prohibition of torture. An emergency was therefore not permission to suspend the whole covenant.

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The covenant established an eighteen-member Human Rights Committee whose members served in their personal capacities. It held its first session in New York in 1977. Under Article 40, states were to submit initial reports within one year of entry into force for them and subsequently as requested, explaining implementation measures, progress and difficulties. International oversight thus became a continuing process rather than a statement made only at signing.

The Optional Protocol, also adopted in 1966, separately established individual communications. A state had to become party to that protocol before the committee could receive individual complaints against it. Applicants generally had to exhaust domestic remedies first, with exceptions such as unreasonably prolonged proceedings. Participation in the covenant alone did not automatically entail acceptance of this mechanism.

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Sandra Lovelace, a Maliseet Indigenous woman in Canada, lost her legal status under the Indian Act then in force when she married a non-Indigenous man in 1970. After the marriage ended, she wanted to return to the Tobique reserve, but the lack of legal entitlement to reside there persisted. On July 30, 1981, the Human Rights Committee found that this continuing restriction, in the case's circumstances, violated minority cultural rights protected by Article 27.

The committee did not treat the marriage before the covenant entered into force for Canada in 1976 as a covenant violation at that earlier time. Instead, it examined continuing effects after entry into force. The case shows how the treaty reached individual lives and also its temporal and jurisdictional boundaries: international review could identify problems and issue views, but domestic legislative, administrative and judicial action was still needed to turn guarantees on paper into effective remedies.

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