The Status of the International Covenant on Civil and Political Rights (ICCPR) in the Domestic Law of State Parties: An Initial Global Survey Through UN Human Rights Committee Documents

I. Introduction

The International Covenant on Civil and Political Rights (ICCPR or Covenant) ¹ is an expanded hard-law version of the 1948 Universal Declaration of Human Rights. ² As Dominic McGoldrick stated, "The most signally important feature of the ICCPR is that it is a universal instrument which contains binding legal obligations for the States parties to it." ³ Currently, 144 states are party to the ICCPR, ⁴ from all "geo-political regions of the world [which] renders it less susceptible to criticism as being founded on a Western, individualistic, or alien philosophy." ⁵

The ICCPR tasks the UN Human Rights Committee with working to ensure increased compliance with the provisions of the ICCPR. The UN Human Rights Committee receives "initial," "subsequent or supplementary," and "periodic" reports from state parties to the ICCPR every five years and enters into public discussion with countries' representatives concerning the human rights situation in the representatives' states. ⁶ It also receives "complaints" from individuals against actions and legislation of the ninety-two state parties to the Optional Protocol to the ICCPR and issues "views" on those complaints. ⁷ In addition, the Human Rights Committee issues "general comments" on articles of the ICCPR. ⁸

While this international supervision of the implementation of the Covenant through the UN Human Rights Committee is important, ⁹ domestic supervision is "of far greater and more enduring significance for the promotion and protection of human rights." ¹⁰ Domestic remedies are likely to be (1) speedier, (2) perhaps less expensive, and (3) more effective, because a national court of appeals or Supreme Court can usually reverse the decision of a lower court, whereas the decision of an international organ does not have that effect. As Farrokh Jhabvala has stated, "if one had to choose between the two, 'domestic implementation' without international monitoring would be far more desirable than vice versa." ¹¹

The ICCPR sets a basic enforceable minimum standard for the respect of human rights around the world. However, partly because it is relatively new, not much attention has been given to the role the ICCPR plays in domestic courts of the state parties.

The ICCPR covers a wide variety of rights (fair trial, movement, asylum, voting rights, freedom from arbitrary detention) in terms that are more specific than the Universal Declaration on Human Rights. Despite this specificity, however, case law is also necessary in order to better determine what effect the ICCPR will have on any given government action or legislation. While domestic courts are often called upon to determine whether actions of the government are in conformity with fundamental freedoms provisions of domestic constitutions, it is only relatively recently that courts are also being asked to determine whether government actions and legislation are consistent with international human rights obligations such as the ICCPR.

Some commentators have noted that international obligations are not enforceable in most countries without domestic implementing legislation. For example, Dominic McGoldrick wrote in 1991 that "[t]he vast majority of States parties have not incorporated the ICCPR. . . ." ¹² As this survey shows, at present that assertion does not appear to be correct.

In many civil law "monist" countries, international obligations, once ratified, automatically become part of the legal system of that country. Recent changes in the legal systems of countries of Eastern Europe and a slow movement toward "supreme" or constitutional-level protection for basic rights have increased the number of countries that have incorporated the ICCPR into the domestic law of the states parties to the Covenant.

The primary purposes of this article are to emphasize the domestic legal potential for the use of the ICCPR and to promote the sharing of ICCPR jurisprudence among jurists...