International Covenant on Civil and Political Rights

Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law.[20] It is a "supreme right" from which no derogation can be permitted, and must be interpreted widely.[21] It therefore requires parties to take positive measures to reduce infant mortality and increase life expectancy, as well as forbidding arbitrary killings by security forces.[21]

While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes"[22] and forbids it to be used on children and pregnant women[23] or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide.[24] The UN Human Rights Committee interprets the Article as "strongly suggest[ing] that abolition is desirable",[21] and regards any progress towards abolition of the death penalty as advancing this right.[21] The Second Optional Protocol commits its signatories to the abolition of the death penalty within their borders.

Article 7 prohibits torture, cruel, inhuman or degrading punishment and non-consensual medical or scientific experimentation.[25] As with Article 6, it cannot be derogated from under any circumstances.[18] The article is now interpreted to impose similar obligations to those required by the United Nations Convention Against Torture, including not just prohibition of torture, but active measures to prevent its use and a prohibition on refoulement.[26] In response to Nazi human experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.[25]

Article 8 prohibits slavery and enforced servitude in all situations.[27] The article also prohibits forced labour, with exceptions for criminal punishment, military service and civil obligations.[28]

Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law,[29] and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts.[30] These provisions apply not just to those imprisoned as part of the criminal process, but also to those detained due to mental illness, drug addiction, or for educational or immigration purposes.[31]

Articles 9.3 and 9.4 impose procedural safeguards around arrest, requiring anyone arrested to be promptly informed of the charges against them, and to be brought promptly before a judge.[32] It also restricts the use of pre-trial detention,[33] requiring that it not be 'the general rule'.[31]

Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.[34] This applies not just to prisoners, but also to those detained for immigration purposes or psychiatric care.[35] The right complements the Article 7 prohibition on torture and cruel, inhuman or degrading treatment.[35] The article also imposes specific obligations around criminal justice, requiring prisoners in pretrial detention to be separated from convicted prisoners, and children to be separated from adults.[36] It requires prisons to be focused on reform and rehabilitation rather than punishment.[37]

Article 11 prohibits the use of imprisonment as a punishment for breach of contract.[38]

Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public.[39] Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children.[39] These obligations apply to both criminal and civil hearings, and to all courts and tribunals.[40] Article 14.3 mandates that litigants must be informed promptly and in detail in a language which they understand.[41]

The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence[42] and forbids double jeopardy.[43] It requires that those convicted of a crime be allowed to appeal to a higher tribunal,[44] and requires victims of a Miscarriage of justice to be compensated.[45] It establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.[46]

Article 15 prohibits prosecutions under ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.[47] One exception is criminal proceedings held for violations of peremptory norms (jus cogens) under customary international law,[48] such as genocide, slavery, torture, and wars of aggression.

Article 16 requires states to recognize everyone as a person before the law.[49]

Article 12 guarantees freedom of movement, including the right of persons to choose their residence, to leave and return to a country.[50] These rights apply to legal aliens as well as citizens of a state,[51] and can be restricted only where necessary to protect national security, public order or health, and the rights and freedoms of others.[52] The article also recognises a right of people to enter their own country: the right of return.[53] The Human Rights Committee interprets this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality.[51] They also regard it as near-absolute; "there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable".[51]

Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.[54]

Article 17 mandates the right of privacy.[55] This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour,[56] however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision.[57] Article 17 also protects people against unlawful attacks to their honor and reputation. Article 17 (2) grants the protection of the law against such attacks.[55]

Article 18 mandates freedom of religion or belief.[58]

Article 19 mandates freedom of expression.[59]

Article 20 mandates sanctions against inciting war and hatred.[60]

Article 21 mandates freedom of assembly and 22 mandates freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and also defines the International Labour Organization.[61][62]

Article 23 mandates the right of marriage.[63] The wording of this provision neither requires nor prohibits same-sex marriage.[64]

Article 24 mandates special protection, the right to a name, and the right to a nationality for every child.[65]

Article 27 mandates the rights of ethnic, religious and linguistic minority to enjoy their own culture, to profess their own religion, and to use their own language.[66]

Article 3 provides an accessory non-discrimination principle. Accessory in the way that it cannot be used independently and can only be relied upon in relation to another right protected by the ICCPR.

In contrast, Article 26 contains a revolutionary norm by providing an autonomous equality principle which is not dependent upon another right under the convention being infringed. This has the effect of widening the scope of the non-discrimination principle beyond the scope of ICCPR.

The Covenant is not directly enforceable in Australia, but its provisions support a number of domestic laws, which confer enforceable rights on individuals. For example, Article 17 of the convention has been implemented by the Australian Privacy Act 1988. Likewise, the Covenant's equality and anti-discrimination provisions support the federal Disability Discrimination Act 1992. Finally, the Covenant is one of the major sources of 'human rights' listed in the Human Rights (Parliamentary Scrutiny) Act 2011.[74] This law requires most new legislation and administrative instruments (such as delegated/subordinate legislation) to be tabled in parliament with a statement outlining the proposed law's compatibility with the listed human rights[75] A Joint Committee on Human Rights scrutinises all new legislation and statements of compatibility.[76] The findings of the Joint Committee are not legally binding.

Legislation also establishes the Australian Human Rights Commission[77] which allows the Australian Human Rights Commission (AHRC) to examine enacted legislation[78] (to suggest remedial enactments[79]), its administration[80] (to suggest avoidance of practices[81]) and general compliance[82] with the covenant which is scheduled to the AHRC legislation.[83]

In Victoria and the Australian Capital Territory, the convention can be used by a plaintiff or defendant who invokes those jurisdiction's human rights charters.[84] While the Convention cannot be used to overturn a Victorian or ACT law, a Court can issue a 'declaration of incompatibility' that requires the relevant Attorney-General to respond in Parliament within a set time period.[86] Courts in Victoria and the ACT are also directed by the legislation to interpret the law in a way to give effect to a human right,[85] and new legislation and subordinate legislation must be accompanied by a statement of compatibility.[87] Efforts to implement a similar Charter at the national level have been frustrated and Australia's Constitution may prevent conferring the 'declaration' power on federal judges.[88]

Ireland's use of Special Criminal Courts where juries are replaced by judges and other special procedures apply has been found to not violate the treaty: "In the Committee's view, trial before courts other than the ordinary courts is not necessarily, per se, a violation of the entitlement to a fair hearing and the facts of the present case do not show that there has been such a violation."[89]

New Zealand took measures to give effect to many of the rights contained within it by passing the New Zealand Bill of Rights Act in 1990, and formally incorporated the status of protected person into law through the passing of the Immigration Act 2009.[90]

Sri Lankan author Shakthika Sathkumara was arrested on 1 April 2019 for inciting religious violence, following a publication of a short story about homosexuality and child abuse at a Buddhist temple in Sri Lanka. The author had been adjudged the best Sinhala language short story writer in Sri Lanka's National Youth Literary Festivals of 2010 and 2014, and was twice the recipient of the north western provincial state literary award. A group of Buddhist monks had stormed the author's workplace demanding punitive action against him after the story first appeared on Facebook; the ICCPR prohibits "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Human rights organizations Civicus and the Asian Human Rights Commission (AHRC) have asserted that the charges are spurious and a clear violation of the author's right to freedom of expression.[91][92]

The United States Senate ratified the ICCPR in 1992, with five reservations, five understandings, and four declarations.[72] Some have noted that with so many reservations, its implementation has little domestic effect,[93] although it has been argued that the reason behind the Senate reservations is that Article 20(2) (regarding hate speech) of the ICCPR may be unconstitutional according to Supreme Court precedent.[94] Included in the Senate's ratification was the declaration that "the provisions of Article 1 through 27 of the Covenant are not self-executing",[95] and a Senate Executive Report stated that the declaration was meant to "clarify that the Covenant will not create a private cause of action in U.S. Courts".[96]

Where a treaty or covenant is not self-executing, and where Congress has not acted to implement the agreement with legislation, no private right of action within the US judicial system is created by ratification.[97] However, a reservation that is "incompatible with the object and purpose" of a treaty is void as a matter of the Vienna Convention on the Law of Treaties and international law,[98] and there is question as to whether the non-self-execution declaration is even constitutional [99] under the Supremacy Clause (Prof. Louis Henkin argues that it is not[100]). Prof. Jordan Paust criticizes the United States' ratification subject to the non-self-execution declaration as being an abuse of the treaty.[101]

In 1994, the United Nations' Human Rights Committee expressed concerns with compliance:[102]

Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.

In 2006, the Human Rights Committee expressed concern over what it interprets as material non-compliance, exhorting the United States to take immediate corrective action:[103]

The Committee notes with concern the restrictive interpretation made by the State party of its obligations under the Covenant, as a result in particular of (a) its position that the Covenant does not apply with respect to individuals under its jurisdiction but outside its territory, nor in time of war, despite the contrary opinions and established jurisprudence of the Committee and the International Court of Justice; (b) its failure to take fully into consideration its obligation under the Covenant not only to respect, but also to ensure the rights prescribed by the Covenant; and (c) its restrictive approach to some substantive provisions of the Covenant, which is not in conformity with the interpretation made by the Committee before and after the State party's ratification of the Covenant. The State party should review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose. The State party should in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war; (b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and (c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

1.  Bhutan
2.  Brunei
3.  Kiribati
4.  Malaysia
5.  Micronesia
6.  Myanmar
7.  Oman
8.  Saint Kitts and Nevis
9.  Saudi Arabia
10.  Singapore
11.  Solomon Islands
12.  South Sudan
13.  Tonga
14.  Tuvalu
15.  United Arab Emirates

1.  Cook Islands
2.  Niue
3.  Taiwan[upper-alpha 10]
4.   Vatican City (through the Holy See) [upper-alpha 11]