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Article 2: Implementation at the national level - replaced by GC No. 31 1981, para. 1
- Paragraph text
- The Committee notes that article 2 of the Covenant generally leaves it to the States parties concerned to choose their method of implementation in their territories within the framework set out in that article. It recognizes, in particular, that the implementation does not depend solely on constitutional or legislative enactments, which in themselves are often not per se sufficient. The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights. This is obvious in a number of articles (e.g. article 3 which is dealt with in general comment No. 4 below), but in principle this undertaking relates to all rights set forth in the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 2: Implementation at the national level - replaced by GC No. 31 1981, para. 2
- Paragraph text
- In this connection, it is very important that individuals should know what their rights under the Covenant (and the Optional Protocol, as the case may be) are and also that all administrative and judicial authorities should be aware of the obligations which the State party has assumed under the Covenant. To this end, the Covenant should be publicized in all official languages of the State and steps should be taken to familiarize the authorities concerned with its contents as part of their training. It is desirable also to give publicity to the State party’s cooperation with the Committee.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 4: Derogations 1981, para. 1
- Paragraph text
- Article 4 of the Covenant has posed a number of problems for the Committee when considering reports from some States parties. When a public emergency which threatens the life of a nation arises and it is officially proclaimed, a State party may derogate from a number of rights to the extent strictly required by the situation. The State party, however, may not derogate from certain specific rights and may not take discriminatory measures on a number of grounds. The State party is also under an obligation to inform the other States parties immediately, through the Secretary-General, of the derogations it has made including the reasons therefor and the date on which the derogations are terminated.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 4: Derogations 1981, para. 2
- Paragraph text
- States parties have generally indicated the mechanism provided in their legal systems for the declaration of a state of emergency and the applicable provisions of the law governing derogations. However, in the case of a few States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 4: Derogations 1981, para. 3
- Paragraph text
- The Committee holds the view that measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that, in times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. The Committee also considers that it is equally important for States parties, in times of public emergency, to inform the other States parties of the nature and extent of the derogations they have made and of the reasons therefor and, further, to fulfil their reporting obligations under article 40 of the Covenant by indicating the nature and extent of each right derogated from together with the relevant documentation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Reporting guidelines - superseded by CCPR/C/66/GUI, 1999 1981, para. 1
- Paragraph text
- The Committee has noted that some of the reports submitted initially were so brief and general that the Committee found it necessary to elaborate general guidelines regarding the form and content of reports. These guidelines were designed to ensure that reports are presented in a uniform manner and to enable the Committee and States parties to obtain a complete picture of the situation in each State as regards the implementation of the rights referred to in the Covenant. Despite the guidelines, however, some reports are still so brief and general that they do not satisfy the reporting obligations under article 40.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Reporting guidelines - superseded by CCPR/C/66/GUI, 1999 1981, para. 2
- Paragraph text
- Article 2 of the Covenant requires States parties to adopt such legislative or other measures and provide such remedies as may be necessary to implement the Covenant. Article 40 requires States parties to submit to the Committee reports on the measures adopted by them, on the progress made in the enjoyment of the Covenant rights and the factors and difficulties, if any, affecting the implementation of the Covenant. Even reports which were in their form generally in accordance with the guidelines have in substance been incomplete. It has been difficult to understand from some reports whether the Covenant had been implemented as part of national legislation and many of them were clearly incomplete as regards relevant legislation. In some reports the role of national bodies or organs in supervising and in implementing the rights had not been made clear. Further, very few reports have given any account of the factors and difficulties affecting the implementation of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Reporting guidelines - superseded by CCPR/C/66/GUI, 1999 1981, para. 4
- Paragraph text
- It is the practice of the Committee, in accordance with Rule 68 of its Provisional Rules of Procedure, to examine reports in the presence of representatives of the reporting States. All States whose reports have been examined have cooperated with the Committee in this way but the level, experience and the number of representatives have varied. The Committee wishes to state that, if it is to be able to perform its functions under article 40 as effectively as possible and if the reporting State is to obtain the maximum benefit from the dialogue, it is desirable that the States representatives should have such status and experience (and preferably be in such number) as to respond to questions put, and the comments made, in the Committee over the whole range of matters covered by the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
- Date added
- Aug 19, 2019
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 1a
- Paragraph text
- The Committee notes, in particular, that paragraph 1 of this article is generally applicable to persons deprived of their liberty, whereas paragraph 2 deals with accused as distinct from convicted persons, and paragraph 3 with convicted persons only. This structure quite often is not reflected in the reports, which mainly have related to accused and convicted persons. The wording of paragraph 1, its context especially its proximity to article 9, paragraph 1, which also deals with all deprivations of liberty and its purpose support a broad application of the principle expressed in that provision. Moreover, the Committee recalls that this article supplements article 7 as regards the treatment of all persons deprived of their liberty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1982
- Date added
- Aug 19, 2019
Paragraph
Article 9: Right to liberty and security of persons 1982, para. 3
- Paragraph text
- Another matter is the total length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern within the Committee, and members have questioned whether their practices have been in conformity with the entitlement "to trial within a reasonable time or to release" under paragraph 3. Pre trial detention should be an exception and as short as possible. The Committee would welcome information concerning mechanisms existing and measures taken with a view to reducing the duration of such detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1982
- Date added
- Aug 19, 2019
Paragraph
Article 19: Freedom of opinion and expression 1983, para. 4
- Paragraph text
- Paragraph 3 expressly stresses that the exercise of the right to freedom of expression carries with it special duties and responsibilities and for this reason certain restrictions on the right are permitted which may relate either to the interests of other persons or to those of the community as a whole. However, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be "provided by law"; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being "necessary" for that State party for one of those purposes.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1983
- Date added
- Aug 19, 2019
Paragraph
Article 14: Administration of justice 1984, para. 1
- Paragraph text
- The Committee notes that article 14 of the Covenant is of a complex nature and that different aspects of its provisions will need specific comments. All of these provisions are aimed at ensuring the proper administration of justice, and to this end uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Not all reports provided details on the legislative or other measures adopted specifically to implement each of the provisions of article 14.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1984
- Date added
- Aug 19, 2019
Paragraph
Article 14: Administration of justice 1984, para. 2
- Paragraph text
- In general, the reports of States parties fail to recognize that article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. Laws and practices dealing with these matters vary widely from State to State. This diversity makes it all the more necessary for States parties to provide all relevant information and to explain in greater detail how the concepts of "criminal charge" and "rights and obligations in a suit at law" are interpreted in relation to their respective legal systems.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
- Date added
- Aug 19, 2019
Paragraph
Article 14: Administration of justice 1984, para. 3
- Paragraph text
- The Committee would find it useful if, in their future reports, States parties could provide more detailed information on the steps taken to ensure that equality before the courts, including equal access to courts, fair and public hearings and competence, impartiality and independence of the judiciary are established by law and guaranteed in practice. In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1984
- Date added
- Aug 19, 2019
Paragraph
Article 14: Administration of justice 1984, para. 19
- Paragraph text
- In considering State reports differing views have often been expressed as to the scope of paragraph 7 of article 14. Some States parties have even felt the need to make reservations in relation to procedures for the resumption of criminal cases. It seems to the Committee that most States parties make a clear distinction between a resumption of a trial justified by exceptional circumstances and a re trial prohibited pursuant to the principle of ne bis in idem as contained in paragraph 7. This understanding of the meaning of ne bis in idem may encourage States parties to reconsider their reservations to article 14, paragraph 7.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
- Date added
- Aug 19, 2019
Paragraph
Non-discrimination 1989, para. 9
- Paragraph text
- Reports of many States parties contain information regarding legislative as well as administrative measures and court decisions which relate to protection against discrimination in law, but they very often lack information which would reveal discrimination in fact. When reporting on articles 2 (1), 3 and 26 of the Covenant, States parties usually cite provisions of their constitution or equal opportunity laws with respect to equality of persons. While such information is of course useful, the Committee wishes to know if there remain any problems of discrimination in fact, which may be practised either by public authorities, by the community, or by private persons or bodies. The Committee wishes to be informed about legal provisions and administrative measures directed at diminishing or eliminating such discrimination.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- All
- N.A.
- Year
- 1989
- Date added
- Aug 19, 2019
Paragraph
Non-discrimination 1989, para. 10
- Paragraph text
- The Committee also wishes to point out that the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- N.A.
- Year
- 1989
- Date added
- Aug 19, 2019
Paragraph
Non-discrimination 1989, para. 12
- Paragraph text
- While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations. That is to say, article 26 provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination, and that the law shall guarantee to all persons equal and effective protection against discrimination on any of the enumerated grounds. In the view of the Committee, article 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1989
- Date added
- Aug 19, 2019
Paragraph
Non-discrimination 1989, para. 13
- Paragraph text
- Finally, the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- All
- N.A.
- Year
- 1989
- Date added
- Aug 19, 2019
Paragraph
Article 18: The right to freedom of thought, conscience and religion 1993, para. 1
- Paragraph text
- The right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) in article 18 (1) is far-reaching and profound; it encompasses freedom of thoughts on all matters, personal conviction and the commitment to religion or belief, whether manifested individually or in community with others. The Committee draws the attention of States parties to the fact that the freedom of thought and the freedom of conscience are protected equally with the freedom of religion and belief. The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency, as stated in article 4 (2) of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- All
- N.A.
- Year
- 1993
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 3
- Paragraph text
- It is not always easy to distinguish a reservation from a declaration as to a State's understanding of the interpretation of a provision, or from a statement of policy. Regard will be had to the intention of the State, rather than the form of the instrument. If a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the State, it constitutes a reservation. Conversely, if a so-called reservation merely offers a State's understanding of a provision but does not exclude or modify that provision in its application to that State, it is, in reality, not a reservation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 4
- Paragraph text
- The possibility of entering reservations may encourage States which consider that they have difficulties in guaranteeing all the rights in the Covenant none the less to accept the generality of obligations in that instrument. Reservations may serve a useful function to enable States to adapt specific elements in their laws to the inherent rights of each person as articulated in the Covenant. However, it is desirable in principle that States accept the full range of obligations, because the human rights norms are the legal expression of the essential rights that every person is entitled to as a human being.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 5
- Paragraph text
- The Covenant neither prohibits reservations nor mentions any type of permitted reservation. The same is true of the first Optional Protocol. The Second Optional Protocol provides, in article 2, paragraph 1, that "No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides 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". Paragraphs 2 and 3 provide for certain procedural obligations.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 6
- Paragraph text
- The absence of a prohibition on reservations does not mean that any reservation is permitted. The matter of reservations under the Covenant and the first Optional Protocol is governed by international law. Article 19 (3) of the Vienna Convention on the Law of Treaties provides relevant guidance. It stipulates that where a reservation is not prohibited by the treaty or falls within the specified permitted categories, a State may make a reservation provided it is not incompatible with the object and purpose of the treaty. Even though, unlike some other human rights treaties, the Covenant does not incorporate a specific reference to the object and purpose test, that test governs the matter of interpretation and acceptability of reservations.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 7
- Paragraph text
- In an instrument which articulates very many civil and political rights, each of the many articles, and indeed their interplay, secures the objectives of the Covenant. The object and purpose of the Covenant is to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify; and to provide an efficacious supervisory machinery for the obligations undertaken.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 10
- Paragraph text
- The Committee has further examined whether categories of reservations may offend the "object and purpose" test. In particular, it falls for consideration as to whether reservations to the non-derogable provisions of the Covenant are compatible with its object and purpose. While there is no hierarchy of importance of rights under the Covenant, the operation of certain rights may not be suspended, even in times of national emergency. This underlines the great importance of non-derogable rights. But not all rights of profound importance, such as articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason for certain rights being made non-derogable is because their suspension is irrelevant to the legitimate control of the state of national emergency (for example, no imprisonment for debt, in article 11). Another reason is that derogation may indeed be impossible (as, for example, freedom of conscience). At the same time, some provisions are non-derogable exactly because without them there would be no rule of law. A reservation to the provisions of article 4 itself, which precisely stipulates the balance to be struck between the interests of the State and the rights of the individual in times of emergency, would fall in this category. And some non-derogable rights, which in any event cannot be reserved because of their status as peremptory norms, are also of this character - the prohibition of torture and arbitrary deprivation of life are examples. While there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 11
- Paragraph text
- The Covenant consists not just of the specified rights, but of important supportive guarantees. These guarantees provide the necessary framework for securing the rights in the Covenant and are thus essential to its object and purpose. Some operate at the national level and some at the international level. Reservations designed to remove these guarantees are thus not acceptable. Thus, a State could not make a reservation to article 2, paragraph 3, of the Covenant, indicating that it intends to provide no remedies for human rights violations. Guarantees such as these are an integral part of the structure of the Covenant and underpin its efficacy. The Covenant also envisages, for the better attainment of its stated objectives, a monitoring role for the Committee. Reservations that purport to evade that essential element in the design of the Covenant, which is also directed to securing the enjoyment of the rights, are also incompatible with its object and purpose. A State may not reserve the right not to present a report and have it considered by the Committee. The Committee's role under the Covenant, whether under article 40 or under the Optional Protocols, necessarily entails interpreting the provisions of the Covenant and the development of a jurisprudence. Accordingly, a reservation that rejects the Committee's competence to interpret the requirements of any provisions of the Covenant would also be contrary to the object and purpose of that treaty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 13
- Paragraph text
- The issue arises as to whether reservations are permissible under the first Optional Protocol and, if so, whether any such reservation might be contrary to the object and purpose of the Covenant or of the first Optional Protocol itself. It is clear that the first Optional Protocol is itself an international treaty, distinct from the Covenant but closely related to it. Its object and purpose is to recognize the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation by a State party of any of the rights in the Covenant. States accept the substantive rights of individuals by reference to the Covenant, and not the first Optional Protocol. The function of the first Optional Protocol is to allow claims in respect of those rights to be tested before the Committee. Accordingly, a reservation to an obligation of a State to respect and ensure a right contained in the Covenant, made under the first Optional Protocol when it has not previously been made in respect of the same rights under the Covenant, does not affect the State's duty to comply with its substantive obligation. A reservation cannot be made to the Covenant through the vehicle of the Optional Protocol but such a reservation would operate to ensure that the State's compliance with that obligation may not be tested by the Committee under the first Optional Protocol. And because the object and purpose of the first Optional Protocol is to allow the rights obligatory for a State under the Covenant to be tested before the Committee, a reservation that seeks to preclude this would be contrary to the object and purpose of the first Optional Protocol, even if not of the Covenant. A reservation to a substantive obligation made for the first time under the first Optional Protocol would seem to reflect an intention by the State concerned to prevent the Committee from expressing its views relating to a particular article of the Covenant in an individual case.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 14
- Paragraph text
- The Committee considers that reservations relating to the required procedures under the first Optional Protocol would not be compatible with its object and purpose. The Committee must control its own procedures as specified by the Optional Protocol and its rules of procedure. Reservations have, however, purported to limit the competence of the Committee to acts and events occurring after entry into force for the State concerned of the first Optional Protocol. In the view of the Committee this is not a reservation but, most usually, a statement consistent with its normal competence ratione temporis. At the same time, the Committee has insisted upon its competence, even in the face of such statements or observations, when events or acts occurring before the date of entry into force of the first Optional Protocol have continued to have an effect on the rights of a victim subsequent to that date. Reservations have been entered which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by precluding examination of a communication when the same matter has already been examined by another comparable procedure. In so far as the most basic obligation has been to secure independent third party review of the human rights of individuals, the Committee has, where the legal right and the subject-matter are identical under the Covenant and under another international instrument, viewed such a reservation as not violating the object and purpose of the first Optional Protocol.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
Paragraph
Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant 1994, para. 15
- Paragraph text
- The primary purpose of the Second Optional Protocol is to extend the scope of the substantive obligations undertaken under the Covenant, as they relate to the right to life, by prohibiting execution and abolishing the death penalty. It has its own provision concerning reservations, which is determinative of what is permitted. Article 2, paragraph 1, provides that only one category of reservation is permitted, namely one that reserves the right to apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. Two procedural obligations are incumbent upon States parties wishing to avail themselves of such a reservation. Article 2, paragraph 1, obliges such a State to inform the Secretary-General, at the time of ratification or accession, of the relevant provisions of its national legislation during warfare. This is clearly directed towards the objectives of specificity and transparency and in the view of the Committee a purported reservation unaccompanied by such information is without legal effect. Article 2, paragraph 3, requires a State making such a reservation to notify the Secretary-General of the beginning or ending of a state of war applicable to its territory. In the view of the Committee, no State may seek to avail itself of its reservation (that is, have execution in time of war regarded as lawful) unless it has complied with the procedural requirement of article 2, paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1994
- Date added
- Aug 19, 2019
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