Professional Documents
Culture Documents
of Justice. Both proceedings led to the conclusion that Phillip had committed suicide; (3) in January 1998 with the Philippine Senate (Committees
on Justice-Human Rights and Defense-National Security); (4) in March 2000 with Ombudsman Aniano Desierto; (5) and in October 2005 with a
new Ombudsman (Simeon Marcelo), who was replaced thereafter. No action was taken on the case by the new Ombudsman, Merceditas
Gutierrez, since she took office in December 2005.
After filing their complaint with the Office of the Ombudsman on 27 October 2005, in December 2005, the Ombudsman found merit in the
spouses petition, reopened the case, and requested from the Commanding Officer of the BRP Bacolod City in September 1995, and from eight
senior and junior officers and enlisted personnel to submit counter-affidavits as respondents, within ten days. However, only one week after
reopening the spouses case, the Ombudsman stepped down, and was replaced. Since then, the case was left uninvestigated in the Office of the
Ombudsman for military affairs.
On 25 January 1998, after eight Committee hearings, a visual inspection of Phillips stateroom in the ship, and relying, inter alia, on expert
evidence and witness testimonies, two Senate Committees issued a Joint report on the Pestao case, which contained the following findings: (i)
Phillip did not kill himself on the BRP Bacolod City on 27 September 1995; (ii) he was shot in one place in the vessel different from the one
where his body was found; (iii) after his death, his body was moved and laid on the bed where it was found; (iv) he must have been shot on board
the BRP Bacolod City before the vessel reached the Navy Headquarters on 27 September 1995; (v) there was a deliberate attempt to make it
appear that Phillip killed himself inside his stateroom; and (vi) such an attempt was so deliberate and elaborate that one person could not have
accomplished it by himself. The Senate Committees also recommended, inter alia, that an independent investigation be conducted on the
circumstances surrounding Phillips murder, so as to bring the perpetrators to justice, and identify the other individuals who participated in the
deliberate attempt to portray a suicide.
On 28 March 2000, the Ombudsman (Fact-finding and Intelligence Bureau) in charge of the file dismissed the case without prejudice, concluding
in its evaluation report that the conduct of further investigation in order to find out the identity of the perpetrator and his accomplices, if any, will
only be a waste of time, considering that the physical evidence has already been tampered with, not to mention the lapse of time.
UNHRCs consideration of the merits of the case
Violation of Article 6 of the ICCPR
As regards the alleged violation by the Philippines of Article 6 of the ICCPR, the HRC stated referring to the ICCPR as the Covenant - that it:
Recalls that the right to life is the supreme right, from which no derogation is permitted. It further recalls that States parties have a positive
obligation to ensure the protection of individuals against violations of Covenant rights, which may be committed not only by its agents, but also
by private persons or entities. The Committee also refers to its jurisprudence, according to which both a criminal investigation and consequential
prosecution are necessary remedies for violations of human rights such as those protected by article 6. A violation of the Covenant may therefore
arise as a result of a State partys failure to take appropriate measures to punish, investigate or redress such a violation.
7.2 Despite the initial findings of the [Philippine] National Police and Department of Justice, which both concluded in October 1995 that the
victim had committed suicide, it now appears undisputed that the death of [Phillip Pestao] was a violent one, resulting from a homicide. The
[Philippine Authorities] submissions of 18 January and 8 May 2008, contending that [Spouses Pestao]s case was an ordinary criminal case,
at least concede this fact
The UNHRC took note of the following:
1. Conclusions of the substantial Senate report of 25 January 1998, which established that the victim was shot on board the BRP Bacolod
City on 27 September 1995, that there had been a deliberate attempt to make it appear that [he] killed himself, and which recommended
that an independent investigation be conducted.
2. That an administrative and criminal action filed by [Spouses Pestao] is currently pending against members of the [Philippine]s Navy,
i.e. of an organ of the [state].
3. [Spouses Pestao]s assertions that two other members of the [Philippine] Navy who were close to the victim, as well as another Navy
Ensign who allegedly participated in the illicit boarding of drugs on the BRP Bacolod City, and who had engaged in communications
with [Spouses Pestao] about their sons death, all died or disappeared in mysterious circumstances between October 1995 and January
1996.
4. [Spouses Pestao]s report of having been threatened by a Vice-Admiral of the [Philippine] Navy to lose their business with the Navy
should they persist in their complaint. As they pursued their action, [Spouses Pestao] reportedly lost their business, and their nephew,
the companys property custodian, was killed.
5. In the absence of rebuttal statements, or any comments from the [Philippine Authorities] on these facts, the Committee gives due
weight to the [Spouses Pestao]s contentions, which raise a strong presumption of direct participation of the [Philippine Government]
in the violation of their sons right to life.
The UNHRC then considered the following:
1.
That the killing of [Spouses Pestao]s son on board a ship of the [Philippine] Navy warranted a speedy, independent investigation on
the possible involvement of the Navy in the crime. To simply state that there was no direct participation of the State party in the violation of
the victims right to life falls short of fulfilling such positive obligation under the Covenant. While close to fifteen years elapsed since the death of
the victim, [Spouses Pestao] are still ignorant of the circumstances surrounding their sons death, and the [Philippine] authorities have yet to
initiate an independent investigation. In its submission of 8 May 2008, the [Philippine Authorities] referred to an Order of 10 August 2007 of the
Office of the Ombudsman, which deemed it necessary to conduct further proceedings in the case. The Committee is not aware, however, of
any preliminary proceedings undertaken by that Office since an action was filed de novo by [Spouses Pestao] in October 2005. Since that date,
no suspect was prosecuted, or tried, let alone convicted, and [Spouses Pestao] were not compensated for the tragic loss of their son.
2.
That the death of [Phillip Pestao] is directly attributable to the [Philippine Authorities]. When a person dies in circumstances that
might involve a violation of the right to life, the State party is bound to conduct an investigation and ensure that there is no impunity. The
[Philippine Authorities] must accordingly be held to be in breach of its obligation, under article 6, read in conjunction with article 2, paragraph 3,
to properly investigate the death of [Phillip Pestao], prosecute the perpetrators, and ensure redress.
Violation of Article 2, paragraph 3(a) of the ICCPR
The UNHRC states that Under article 2, paragraph 3(a), of the Covenant, the [Philippines] is under an obligation to provide [Spouses Pestao]
with an effective remedy in the form, inter alia, of an impartial, effective and timely investigation into the circumstances of their sons death,
prosecution of perpetrators, and adequate compensation. The [Philippines] is also under an obligation to prevent similar violations in the future.
In ending, the UNHRC relayed its wish to receive from the [Philippines], within 180 days, information about the measures taken to give effect
to the Committee's Views.
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in
scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic
production of which one is the author (see also Article 15 ICESCR and Article 27 ICCPR).
The alleged dichotomy between civil and political rights, and economic, social and cultural rights
Traditionally it has been argued that there are fundamental differences between economic, social and cultural rights, and civil and political rights.
These two categories of rights have been seen as two different concepts and their differences have been characterized as a dichotomy. According
to this view, civil and political rights are considered to be expressed in very precise language, imposing merely negative obligations which do not
require resources for their implementation, and which therefore can be applied immediately. On the other hand, economic, social and cultural
rights are considered to be expressed in vague terms, imposing only positive obligations conditional on the existence of resources and therefore
involving a progressive realization.
As a consequence of these alleged differences, it has been argued that civil and political rights are justiciable whereas economic, social and
cultural rights are not. In other words, this view holds that only violations of civil and political rights can be adjudicated by judicial or similar
bodies, while economic, social and cultural rights are by their nature non-justiciable.
Over the years, economic, social and cultural rights have been re-examined and their juridical validity and applicability have been increasingly
stressed. During the last decade, we have witnessed the development of a large and growing body of case law of domestic courts concerning
economic, social and cultural rights. This case law, at the national and international level, suggests a potential role for creative and sensitive
decisions of judicial and quasi-judicial bodies with respect to these rights.
Many international fora have elaborated on the indivisibility and interdependency of human rights. As stated in the 1993 Vienna Declaration and
Program of Action: All human rights are universal, indivisible and interdependent and interrelated. The international community must treat
human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. The European Union (EU) and its member
states have also made it clear on numerous occasions that they subscribe to the view that both categories of human rights are of equal importance,
in the sense that an existence worthy of human dignity is only possible if both civil and political rights and economic, social and cultural rights
are enjoyed. In their Declaration of 21 July 1986, they affirmed that the promotion of economic, social and cultural rights as well as of civil and
political rights is of paramount importance for the full realization of human dignity and for the attainment of the legitimate aspirations of every
individual.
The so-called Limburg Principles on the Implementation of the ICESCR also indicate that a sharp distinction between civil and political rights on
the one hand and economic, social and cultural rights on the other is not accurate. These principles were drawn up in 1986 by a group of
independent experts, and followed in 1997 by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. Together, these
documents provide a clear explanation of the nature of the state party obligations under the ICESCR. The same can be said of the 1990 General
Comment 3 of the UN Committee on Economic, Social and Cultural Rights on the nature of states parties obligations in relation to the ICESCR.
Fortunately, continuous declarations at the international level on the indivisibility and interdependency of all rights have finally been codified by
way of the recently adopted Optional Protocol to the ICESCR. States parties to the Optional Protocol will recognize the competence of the
Committee on Economic, Social and Cultural Rights to receive and consider individual and collective complaints alleging violations of
economic, social and cultural rights set forth in the ICESCR. The Committee will also be empowered to request interim measures to avoid
possible irreparable damage to the victims of the alleged violations and, where it receives reliable information indicating grave or systematic
violations, it shall conduct an inquiry which may include a visit to the state party.
The adoption of the Optional Protocol on the 60th anniversary of the UDHR, on 10 December 2008, represents an historic advance for human
rights. Firstly, economic, social and cultural rights - historically demoted to an inferior status with limited protection - are now finally on an equal
footing with civil and political rights. Secondly, through an individual complaints procedure the meaning and scope of these rights will become
more precise, facilitating efforts to respect and guarantee their enjoyment. Thirdly, the existence of a potential remedy at the international level
will provide an incentive to individuals and groups to formulate some of their economic and social claims in terms of rights. Finally, the
possibility of an adverse finding of the Committee on Economic, Social and Cultural Rights will give economic, social and cultural rights
salience in terms of the political concerns of governments; which these rights largely lack at present.
3. FUNDAMENTAL AND BASIC RIGHTS
Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person. Within the UN, extensive standards have
been developed which, particularly since the 1960s, have been laid down in numerous conventions, declarations and resolutions, and which bring
already recognized rights and matters of policy which affect human development into the sphere of human rights. Concern that a broad definition
of human rights may lead to the notion of violation of human rights losing some of its significance has generated a need to distinguish a separate
group within the broad category of human rights. Increasingly, the terms elementary, essential, core and fundamental human rights are
being used.
Another approach is to distinguish a number of basic rights, which should be given absolute priority in national and international policy. These
include all the rights which concern peoples primary material and non-material needs. If these are not provided, no human being can lead a
dignified existence. Basic rights include the right to life, the right to a minimum level of security, the inviolability of the person, freedom from
slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and other acts which impinge on human dignity.
They also include freedom of thought, conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and
other essentials crucial to physical and mental health.
Mention should also be made of so-called participation rights; for instance, the right to participate in public life through elections (which is also
a political right; see above) or to take part in cultural life. These participation rights are generally considered to belong to the category of
fundamental rights, being essential preconditions for the protection of all kinds of basic human rights.
4. OTHER CLASSIFICATIONS
Freedoms
Preconditions for a dignified human existence have often been described in terms of freedoms ( e.g., freedom of movement, freedom from torture
and freedom from arbitrary arrest). United States President Franklin D. Roosevelt summarized these preconditions in his famous Four Freedoms
Speech to the United States Congress on 26 January 1941:
Freedom of speech and expression;
Freedom of belief (the right of every person to worship God in his own way);
Freedom from want (economic understandings which will secure to every nation a healthy peace-time life for its inhabitants); and
Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion that no nation would be able to
commit an act of physical aggression against any neighbor).
Roosevelt implied that a dignified human existence requires not only protection from oppression and arbitrariness, but also access to the primary
necessities of life.
Civil liberties
The concept of civil liberties is commonly known, particularly in the United States, where the American Civil Liberties Union (a nongovernmental organization) has been active since the 1920s. Civil liberties refer primarily to those human rights which are laid down in the
United States Constitution: freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly, protection
against interference with ones privacy, protection against torture, the right to a fair trial, and the rights of workers. This classification does not
correspond to the distinction between civil and political rights.
The United Nations Charter is the treaty that established the United Nations. The following series of events led to the writing of the Charter, and
the UN's founding.
12 June 1941 - The Declaration of St. James's Palace
In June 1941, London was the home of nine exiled governments. The great British capital had already seen twenty-two months of war and in the
bomb-marked city, air-raid sirens wailed all too frequently. Practically all Europe had fallen to the Axis and ships on the Atlantic, carrying vital
supplies, sank with grim regularity. But in London itself and among the Allied governments and peoples, faith in ultimate victory remained
unshaken. And, even more, people were looking beyond military victory to the postwar future.
14 August 1941 - The Atlantic Charter
Two months after the London Declaration came the next step to a world organization, the result of a dramatic meeting between President
Roosevelt and Prime Minister Churchill.
1 January 1942 - The Declaration of the United Nations
Representatives of 26 countries fighting the Rome-Berlin-Tokyo Axis, decide to support the by Signing the Declaration of the United Nations.
1943 - Moscow and Teheran Conference
Thus by 1943 all the principal Allied nations were committed to outright victory and, thereafter, to an attempt to create a world in which men in
all lands may live out their lives in freedom from fear and want. But the basis for a world organization had yet to be defined, and such a
definition came at the meeting of the Foreign Ministers of Great Britain, the United States and the Soviet Union in October 1943.
1944-1945 - Dumbarton Oaks and Yalta
The principles of the world organization-to-be were thus laid down. But it is a long step from defining the principles and purpose of such a body
to setting up the structure. A blueprint had to be prepared, and it had to be accepted by many nations.
1945 - San Francisco Conference
Forty-five nations, including the four sponsors, were originally invited to the San Francisco Conference: nations which had declared war on
Germany and Japan and had subscribed to the United Nations Declaration.
THE HISTORY OF THE UNITED NATIONS DECLARATION OF HUMAN RIGHTS
The United Nations Charter, specifically Article 68, requires the United Nations Economic and Social Council to set up a commission that
focuses on human rights and economic and social fields.
Article 68 of the United Nations Charter:
The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other
commissions as may be required for the performance of its functions.
The outcome of which was the establishment of the United Nations commission on human rights. The commission on human rights was
composed of 8 members and was chaired by Mrs. Eleanor Roosevelt, the widow of the late us president franklin d. Roosevelt one of the
key persons responsible for the establishment of the United Nations. The said commission was tasked for the drafting of the international bill
of human rights. The central core of the bill was the universal respect for human rights and fundamental freedoms, which includes the
classical, cultural, economic, social, political and other rights.
After the drafting by the Commission, it was revised in light of the replies of some member states of the United Nations. Afterwards, it was
submitted to the United Nations General Assembly. The United Nations General Assembly, is one of the principal organs and the policy making
representative forum of the United Nations.
The General Assembly, in turn, scrutinized the document, with the 58 Member States voting a total of 1,400 times on practically every word
and every clause of the text. There were many debates. Some Islamic States objected to the articles on equal marriage rights and on the right to
change religious belief, for example, while several Western countries criticized the inclusion of economic, social and cultural rights. On 10
December 1948, the United Nations General Assembly unanimously adopted the Universal Declaration of Human Rights, with 8 abstentions.
Since then, 10 December is celebrated every year worldwide as Human Rights Day. The adoption of the Declaration was immediately hailed as a
triumph, uniting very diverse and even conflicting political regimes, religious systems and cultural traditions.
THE UNITED NATIONS DECLARATION OF HUMAN RIGHTS
Political rights
In general, political rights are those set out in Articles 19 to 21 UDHR. They include freedom of expression, freedom of association and assembly,
the right to take part in the government of ones country and the right to vote and stand for election at genuine periodic elections held by secret
ballot.
Economic and social rights
The economic and social rights are listed in Articles 22 to 26 UDHR. These rights provide the conditions necessary for prosperity and wellbeing.
Economic rights refer, for example, to the right to property, the right to work, which one freely chooses or accepts, the right to a fair wage, a
reasonable limitation of working hours, and trade union rights. Social rights are those rights necessary for an adequate standard of living,
including rights to health, shelter, food, social care, and the right to education.
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the community, the right to share in
scientific advancement and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic
production of which one is the author.
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the
purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality,
public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
In article 29, the Universal Declaration of Human Rights reminds us that rights carry responsibilities. It reminds us that everyone has duties to the
community.
A half century ago, the Declaration's drafters could not have imagined the world as we know it; a world where substances released on one
continent contribute to health problems on another; a world where the destruction of forests or industrial emissions of greenhouse gases in one
part of the globe have the power to affect the global climate.
Today, we are more aware than ever that we live in a global village; that community now extends beyond towns, beyond regions and beyond
countries. Our duty to the community is nothing short of our duty to care for the environment from pole to pole.
We are beginning to understand the urgent need to care for our global commons: to protect the ozone layer, to rid roads and fields of the scourge
of landmines, to curb climate change, to care for our forests and the bounty of the seas. The Montreal Protocol on ozone-depleting substances and
the International Convention on Landmines are fine examples of what can be achieved when human rights and human health are respected.
Today, Article 29 is a very valid reminder that the dignity and rights of all members of the human family can be preserved if we accept our duty
to the global community. By accepting that duty, we will avoid the tragedy of the commons.
Article 30
Nothing in the Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to
perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Article 30 serves much the same function as the Constitution of Canada which makes explicit the principle that one part of the Constitution
cannot be used to invalidate or repeal another. Examining the Universal Declaration of Human Rights in a structural sense, it is clear that the
inclusion of Article 30 serves a critical function, in that it precludes the possibility of using the provisions of one article to trump the intended
function and provisions of another.
For example, article 18 articulates the universal right to freedom of religious observance, accompanied by the right to manifest that religion or
belief in teaching, practice, worship and observance. Article 16(3) articulates the importance of the family as the natural and fundamental group
unit of society which is entitled to protection by society and the State. In light of article 30 then, it follows that, for example, a devoutly religious
family cannot justify the involuntary "marrying off" of a child, thus trumping Article 16(2), which spells out that marriage shall be entered into
only with the free and full consent of the individual, the act of marrying that child would stand in direct contravention of the Declaration.
This is not a hollow example. In many countries and societies around the world, children are subjected to family duress and forced into marriage
according to their families' religious convictions.
The fundamental point of Article 30 is to avoid the fallacious interpretation of any of the provisions of the Universal Declaration of Human
Rights.
International Covenant on Civil and Political Rights
The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three articles, divided into six parts.
Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right to "freely determine their political status, pursue
their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be
deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self-governing and trust territories
(colonies) to encourage and respect their self-determination.
Part 2 (Articles 2 5) obliges parties to legislate where necessary to give effect to the rights recognized in the Covenant, and to provide an
effective legal remedy for any violation of those rights. It also requires the rights be recognized "without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and to ensure that they are
enjoyed equally by women. The rights can only be limited "in time of public emergency which threatens the life of the nation, and even then no
derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood,
and freedom of thought, conscience and religion.
Part 3 (Articles 6 27) lists the rights themselves. These include rights to:
physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8);
liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9
11);
procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition
as a person before the law (Articles 14, 15, and 16);
individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family
rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 24);
prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to
discrimination, hostility or violence by law (Article 20);
political participation, including the right to the right to vote (Article 25);
Non-discrimination, minority rights and equality before the law (Articles 26 and 27).
Many of these rights include specific actions which must be undertaken to realize them.
Part 4 (Articles 28 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the
Covenant. It also allows parties to recognize the competence of the Committee to resolve disputes between parties on the implementation of the
Covenant (Articles 41 and 42).
Part 5 (Articles 46 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the
inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources".
Part 6 (Articles 48 53) governs ratification, entry into force, and amendment of the Covenant.
Core provisions
Rights to physical integrity
Article 6 of the Covenant recognises the individual's "inherent right to life" and requires it to be protected by law. It is a "supreme right" from
which no derogation can be permitted, and must be interpreted widely. 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.
While Article 6 does not prohibit the death penalty, it restricts its application to the "most serious crimes and forbids it to be used on children
and pregnant women or in a manner contrary to the Convention on the Prevention and Punishment of the Crime of Genocide. The UN Human
Rights Committee interprets the Article as "strongly suggesting that abolition is desirable", and regards any progress towards abolition of the
death penalty as advancing this right. The Second Optional Protocol commits its signatories to the abolition of the death penalty within their
borders.
Article 7 prohibits torture and cruel, inhuman or degrading punishment. As with Article 6, it cannot be derogated from under any
circumstances. 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. In response to Nazi human
experimentation during WW2 this article explicitly includes a prohibition on medical and scientific experimentation without consent.
Article 8 prohibits slavery and enforced servitude in all situations. The article also prohibits forced labor, with exceptions for criminal
punishment, military service and civil obligations.
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. It also restricts the use of pre-trial detention, requiring it to be imposed only in exceptional
circumstances and for as short a period of time as possible.
Article 10 requires anyone deprived of liberty to be treated with dignity and humanity. This applies not just to prisoners, but also to those
detained for immigration purposes or psychiatric care. The right complements the Article 7 prohibition on torture and cruel, inhuman or
degrading treatment. 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. It requires prisons to be focused on reform and rehabilitation rather than
punishment.
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 and forbids double jeopardy. It requires that those convicted of a
crime be allowed to appeal to a higher tribunal, and requires victims of a Miscarriage of justice to be compensated. It establishes rights to
a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.
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. But except the criminal according to general
principles of law recognized by international community. (jus cogens)
Individual liberties
Article 12 guarantees freedom of movement, including the right of persons to choose their residence and to leave a country. These rights apply to
legal aliens as well as citizens of a state, and can be restricted only where necessary to protect national security, public order or health, and the
rights and freedoms of others. The article also recognises a right of people to enter their own country. The Human Rights Committee interprets
this right broadly as applying not just to citizens, but also to those stripped of or denied their nationality. 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.
Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to be able to be appealed and reviewed.
Article 17 mandates the right of privacy. This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby
nullifying prohibitions on homosexual behavior, however, the wording of this covenant's marriage right (Article 23) excludes the extrapolation of
a same-sex marriage right from this provision. 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.
Articles 21 and 22 mandate freedom of association. These provisions guarantee the right to freedom of association, the right to trade unions and
also defines the International Labor Organization.
Article 23 mandates the right of marriage. The wording of this provision neither requires nor prohibits same-sex marriage.
Article 24 mandates special protection, the right to a name, and the right to a nationality for every child.
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.
Political rights
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.
Optional protocols
There are two Optional Protocols to the Covenant. The First Optional Protocol establishes an individual complaints mechanism, allowing
individuals to complain to the Human Rights Committee about violations of the Covenant. This has led to the creation of a complex jurisprudence
on the interpretation and implementation of the Covenant. As of July 2013, the First Optional Protocol has 114 parties.
The Second Optional Protocol abolishes the death penalty; however, countries were permitted to make a reservation allowing for use of death
penalty for the most serious crimes of a military nature, committed during wartime. As of July 2013, the Second Optional Protocol had 77 parties.
Part 1 (Articles 1 7) commits parties to the elimination of all forms of racial discrimination and to promoting understanding among all races
(Article 2). Parties are obliged to not discriminate on the basis of race, not to sponsor or defend racism, and to prohibit racial discrimination
within their jurisdictions. They must also review their laws and policies to ensure that they do not discriminate on the basis of race, and commit to
amending or repealing those that do. Specific areas in which discrimination must be eliminated are listed in Article 5.
The Convention imposes a specific commitment on parties to eradicate racial segregation and the crime of apartheid within their jurisdictions
(Article 3). Parties are also required to criminalize the incitement of racial hatred (Article 4), to ensure judicial remedies for acts of racial
discrimination (Article 6), and to engage in public education to promote understanding and tolerance (Article 7).
Part 2 (Articles 8 16) governs reporting and monitoring of the Convention and the steps taken by the parties to implement it. It establishes the
Committee on the Elimination of Racial Discrimination, and empowers it to make general recommendations to the UN General Assembly. It also
establishes a dispute-resolution mechanism between parties (Articles 11 13), and allows parties to recognize the competence of the Committee
to hear complaints from individuals about violations of the rights protected by the Convention (Article 14).
Part 3 (Articles 17 25) governs ratification, entry into force, and amendment of the Convention.
Core provisions
Definition of "racial discrimination"
Article 1 of the Convention defines "racial discrimination" as ...any distinction, exclusion, restriction or preference based on race, color, descent,
or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as
are affirmative action policies and other measures taken to redress imbalances and promote equality.
This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction
between the ethnicity and race remains debatable among anthropologists. The inclusion of descent specifically covers discrimination on the basis
of caste and other forms of inherited status.
Discrimination need not be strictly based on race or ethnicity for the Convention to apply. Rather, whether a particular action or policy
discriminates is judged by its effects.
In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable
disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin.
The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by selfidentification.
Prevention of discrimination
Article 2 of the Convention condemns racial discrimination and obliges parties to "undertake to pursue by all appropriate means and without
delay a policy of eliminating racial discrimination in all its forms. It also obliges parties to promote understanding among all races. To achieve
this, the Convention requires that signatories:
Parties are obliged "when the circumstances so warrant" to use affirmative action policies for specific racial groups to guarantee "the full and
equal enjoyment of human rights and fundamental freedoms". However, these measures must be finite, and "shall in no case entail as a
consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been
achieved".
Article 5 expands upon the general obligation of Article 2 and creates a specific obligation to guarantee the right of everyone to equality before
the law regardless of "race, color, or national or ethnic origin". It further lists specific rights this equality must apply to: equal treatment by courts
and tribunals, security of the person and freedom from violence, the civil and political rights affirmed in the ICCPR, the economic, social and
cultural rights affirmed in the ICESCR, and the right of access to any place or service used by the general public, "such as transport hotels,
restaurants, cafes, theatres and parks." This list is not exhaustive, and the obligation extends to all human rights.
Article 6 obliges parties to provide "effective protection and remedies" through the courts or other institutions for any act of racial discrimination.
This
includes
a
right
to
a legal
remedy and damages for
injury
suffered
due
to
discrimination.
Condemnation of apartheid
Article 3 condemns apartheid and racial segregation and obliges parties to "prevent, prohibit and eradicate" these practices in territories under
their jurisdiction. This article has since been strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute of the
International Criminal Court.
The Committee on the Elimination of Racial Discrimination regards this article as also entailing an obligation to eradicate the consequences of
past policies of segregation, and to prevent racial segregation arising from the actions of private individuals.
Prohibition of incitement
Article 4 of the Convention condemns propaganda and organizations that attempt to justify discrimination or are based on the idea of
racial supremacism. It obliges parties, "with due regard to the principles embodied in the Universal Declaration of Human Rights", to adopt
"immediate and positive measures" to eradicate these forms of incitement and discrimination. Specifically, it obliges parties to criminalize hate
speech, hate crimes and the financing of racist activities, and to prohibit and criminalize membership in organizations that "promote and incite"
racial discrimination. A number of parties have reservations on this article, and interpret it as not permitting or requiring measures that infringe on
the freedoms of speech, association or assembly.
The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention, and has
repeatedly criticized parties for failing to abide by it. It regards the obligation as consistent with the freedoms of opinion and expression affirmed
in the UNDHR and ICCPR and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence. It views the provisions
as necessary to prevent organized racial violence and the "political exploitation of ethnic difference."
Promotion of tolerance
Article 7 obliges parties to adopt "immediate and effective measures", particularly in education, to combat racial prejudice and encourage
understanding and tolerance between different racial, ethnic and national groups.
Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice.
This clause has been invoked only once, by Georgia against Russia.
The individual complaints mechanism came into operation in 1982, after it had been accepted by ten states-parties. As of 2010, 58 states had
recognized the competence of the Committee, and 54 cases have been dealt with by the Committee.