The Implementation Of Covenant On Civil And Political Rights

By: Priyadarshni M. Gangte

INTRODUCTION :

Report of the Nuclear Commission on Human Rights, 17 May, 1946 (E/38); ECOSOC (Economic and Social Council) Off Rec II Session, p.224, 228 and 230 stated,

that, “The Commission on Human Rights took up the question of implementation of human rights at its preliminary (Nuclear Session) in 1946. It felt the need for an international agency of implementation entrusted with the task of watching over the general observance of human rights, in order to prevent the recurrence of acts as that Second World War. It recommended that pending the eventual establishment of an agency of implementation, the Commission on Human Rights might be recognized as qualified to aid the appropriate organs of the United Nations in the task defined for the General Assembly and the Economic and Social Council in Articles 13, 55 and 62 of the Charter concerning the promotion and observance of Human Rights and fundamental freedoms for all and to Security Council in the task entrusted to it by Article 39 of the Charter by pointing to cases where violation of human rights committed in one country may by its gravity, its frequency or its systematic nature constitute a threat to the people.” (S.C. Khare: 1977; p.57).

It may also be referred to ECOSOC Off Rec II Session, p.400-2, Res. 9(II) dated 21 June, 1946 wherein it was stated,

“The ECOSOC after considering the report asked the Commission to submit suggestions regarding ways and means for the effective implementation of human rights and fundamental freedoms to enable it to work out arrangement with other organs of the United Nations.” (S.C. Khare: 1977; p.57).

Pursuant to the above decisions, the human rights decision of the Secretariat prepared a memorandum for considerations of Drafting Committee held in June 1947 on implementation envisaging that for international supervision and enforcement at successive stages the following be the principles :

(i) that, General Assembly and other organs including Commission on Human Rights should have the rights to discuss and to recommend action for violations of human rights;
(ii) that, individuals should have the right to petition;
(iii) that, the United Nations should establish a special organ with jurisdiction and duty to supervise and enforce human rights;
(iv) that, it should also have the authority to consider for suspension of human rights; and
(v) that, it should establish local agency of the United Nations in various countries with jurisdiction to supervise and to enforce human rights therein.
The Drafting Committee (vide U.N.DOC E/CN-4/21; p.6-7, July 1, 1947) accepted the above mentioned principles but not the manner in which it has to be achieved. The Commission later referred the same to a Working Group for study and report. The Group reported that :
(i) individual should have the right to petition along with states;
(ii) a five member Standing Committee be appointed by ECOSOC to collect information concerning observance and enforcement of human rights within various states, to receive petition and to redress them through negotiation and reports submitted to the Commission where it fails.
The Group report was sent to states and ECOSOC for consideration and comments. No final decision could be arrived at. In 1919, the Secretariat, after having analyzed all aspects of the matter, proposed to the Commission that a Permanent Conciliation Committee and of local agencies of the U.N. be established in various contracting states with powers to supervise and to apply the provisions of Covenant (vide UN.DOC E/CN 4/168; p.14-18, May 5, 1949). The proposal was further discussed threadbare and after certain modifications it was unanimously agreed that a Human Rights Committee composed of persons of high standing and of recognized experience in the field of human rights be established as a permanent body to consider violation of human rights (UN.DOC E/CN, 4/SR 187 and 188; May 22, 1966).
As regards power and function of the Committee the following were agreed:
(i) to ascertain the facts; and
(ii) to make available its good offices to the states concerned with a view to bringing about a friendly solution.
It was agreed that if no solution was reached, the Committee should report with its conclusion (vide UN.DOC. E/CN 4/SR 191; p.3, May 23, 1950).
Finally the Commission on Human Rights approved the new Chapter in the draft of the Covenant concerning implementation of the Civil and Political Rights in its VII Session (vide ECOSOC Off. Rec.XIII Sess. Supp. 9E/1922; p.13-19, May, 1951). With substantial amendments of the provision of which mention of the following may be made of the Third Committee of the General Assembly:
(i) that, striking a proper balance between two views of a minimum effectiveness of implementation procedure and the new for securing the widest possible acceptance of the Covenant by members states be recognized.
(ii) That, a two-fold system of implementation consisting of a compulsory reporting procedure and of an optional procedure of fact finding and conciliation be set in motion solely by the state parties willing to accept supplementary obligations;
(iii) That, the members of the Human Rights Committee be increased to 18 who shall be elected by states parties to the Covenant and authorize the Committee to make general comments on the report submitted by State Parties (vide UN.DOC A/5546/p.57-59, 62-64, 77-79, 86-90; December 13, 1966).
The Committee on Human Rights as an implementation organ which receive ratification of 38 State Parties created a covenant that came into force with effect from March 26, 1976. The 18th Committee Members elected by secret ballot based on equitable geographical distribution and representatives of different forms of civilization and principal legal systems will serve in their individual capacity for four years as per Articles 33 of the Covenant. The first nine members will serve for four years as determined by lot at the meeting of the Committee and the remaining from January 1, 1977 (vide UN Monthly Chronicle, October, 1976, Vol. XIII No.9 p.33).
The Committee will function to study reports submitted by the State Parties under Article 40 of the Covenant. The Secretary-General, after having consulted the Committee, will submit the relevant parts of the report to specialized agencies falling within this jurisdiction which will, in turn, send to the State concerned and the ECOSOC for general comments along with the original report. The States parties, on their part are to submit their observations on the comments of the Committee which according to William Karey (1968 No.570/55) in his book, “The Key to Human Rights Implementation, International, Conciliation” … are general and lack critical scrutiny or genuine evaluation”.
Article 41 provides for implementation of State to State complaints on violation of human rights of the Covenant. For this purpose, acceptance of the Committee has to be undertaken to the Secretary-General with intimation of States Parties to the Covenant. Such a declaration is pre-requisite of the invocation of the said Act, though the same can be withdrawn anytime by the State Parties thereafter under intimation to the Secretary-General.
In the event of charges against any State parties for not fulfilling the obligations under the Covenant, the State concerned which complaint for such lapses should being the matter to the attention of the alleged State for its explanation of the charges within three months from the date of receipt of such communication. If the contending States do not adjust the issue among themselves within six months, either State may refer the matter to the Committee under intimation thereof to the other parties. In the course of examining the case, the State Parties are obliged to cooperate with the Committee with whatever information may be sought for. The Committee, on it is part, has to submit its report within twelve months from the date of receipt of the notice. If the Committee is able to bring about a settlement, the report shall be briefly in the nature of statement of facts and the solution brought about. In case of failure for a settlement with a prior consent of both the contending States an ad-hoc conciliation Commission may be appointed with the full participation of the State parties which attempts for an amicable settlement due respect given to the provision of the Covenant. The findings of the Commission have to be submitted within twelve months. The procedure adopted in this regard will be the same as that of the Committee proceedings.
Under Article 45, the Committee has to submit its annual report on its activities to the General Assembly through ECOSOC.
In order to understand implementation of the Covenant on Civil and Political Rights, proceeding in respect of self-determination of people of (1) Afghanistan, (2) Kampuchea, (3) Palestine, (4) South Africa and Namibia, and (5) Western Sahara from the reports of the Secretary-General on the status of the Covenant on 31st July, 1987 to the General Assembly may be highlighted.
The Commission on Human Rights asked on 10th March, 1987 states they have not become parties to the covenant and optional protocol to become as per declaration provided for in Article 41 of the Covenant. Similarly, the General Assembly made an appeal the same year vide its resolution 42/103. The Commission also asked the Secretary-General to provide technical assistance to States not parties to the Covenant with a view to assisting them to ratify it, or accede thereto with a request that report thereof be submitted in 1988 on the status of Covenant and its Optional Protocol.
In 1987, the Human Rights Committee held its 29th to 31st Session, to consider reports from 12(twelve) States from 23rd March to 13th November. On 24th July the Committee adopted its 11th Annual report to the Assembly. The Assembly, on its part, vide resolution 42/103 asked the Secretary-General to give more publicity to States Parties to submit their report under Article 40 of the Covenant.
Self-determination of People:
By five resolutions in 1987 the Commission on Human Rights reaffirmed the right to self-determination for the people of (1) Afghanistan, (2) Kampuchea, (3) Palestine, (4) South Africa and Namibia, and (5) Western Sahara. A sixth resolution adopted the item pertained to the use of mercenaries to implede the exercise of the rights of people to self-determination.
The Commission’s action and debates on the rights of self-determination in 1987 were summarized by Secretary-General in a report to the General Assembly. The Report also contained a summary of responses from 17 Governments.
General Assembly Action :
Following the pattern of previous years, the General Assembly adopted in 1987 two resolutions on the right to self-determination, a right it repeatedly reaffirmed for individual Non-Self Governing territories.
On 7th December, on the recommendation of the Third Committee, the Assembly adopted resolution 42/94 without vote.
It may be mentioned here, that India having not ratified the entire Covenant as yet has to explain its position on the matter to the effect that the reference to right of self-determination in Article 1 of the International Covenant on Economic, Social and Cultural Rights applied only to people under foreign domination, not to independent sovereign States or parts of a people or nation. In this connection, it may be recalled that every state has to submit its report annually. India did its first reporting in 1983. In it is report of 1991, India was to explain violation of Human Rights due to enforcement of AFSPA (Armed Forces Special Power Act) in North-East of India particularly in Manipur and Nagaland and TADA (Terrorist and Disruptive Prevention Act) in Punjab. The contention was that India has violated Article 1 of the Covenant on Civil and Political Rights and so also the provisions of Optional Protocol. The irony in this regard is that India has its reservations on the ratification of Article 1 of the Covenant on Civil and Political Rights and the provisions as provided for in the Optional Protocol. Despite this, India has created an international impression that it is the champion of the cause of Human Rights.