Сivil and political rights

1. What are the limitations on rights set out in the civil and political rights covenant? What is meant by the expression ‘ordre public’ The International Covenant on Civil and Political Rights provides certain restrictions of such rights, namely in the cases “necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. ” Such restrictions may not be of discriminatory character and may not involve right to life, freedom from torture, cruel treatment, etc.

It should be noted, that providing universal definition of “public order” is totally impossible, as each State and each nation has it’s own tradition and understanding of what is “public order” and “morals”. In the international law doctrine, the “public order” is generally defined as “concept expressing a people's concept of morality, decency and justice” . More precise definition is left for each member State discretion, at condition, that basic rights, set forth in the Covenant are respected.

As the European Court on Human Rights observed, “there is no uniform conception of the requirements of “the protection of the rights of others” and of “public order” . It has also found out, that “it is well established by its case-law, the national authorities are in principle better placed than an international court to evaluate local needs and conditions  It is for the national authorities to make the initial assessment of the “necessity” for an interference, as regards both the legislative framework and the particular measure of implementation ”.

2. What preconditions are necessary before a state party is entitled to derogate from the provisions of civil and political rights covenants in time of public emergency? What rights are emergency proofs? Another case when certain demands of the ICCPR may be waived by the States-parties is provided in article 4 of the Covenant and it is “public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties” . The most obvious example of such emergency is war or severe public disorders.

In these, as well as in other cases, the emergency must be actual, affect the whole population and the threat must be to the very existence of the nation. The declaration of emergency must also be a last resort and a temporary measure . Certain rights, included in articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18, have been considered so important that they were recognized as non-derogable. These are the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude and the right to be free from retroactive application of penal laws.

These rights are also known as peremptory norms of international law or jus cogens norms. In order for a State to derogate from rights, set forth in the Covenant, it should not only have a situation of extreme emergency. It is also obliged to “immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated.

A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. ” Such prompt information makes the international community aware of temporary restriction of human rights by one State and allows other States to properly monitor such restrictions. 3. What is the relationship between article 2 and article 26 of the civil and political rights covenant? Articles 2 and 26 of the ICCPR somehow coincide with each other, dealing with matters of non-discrimination before the law.

According to article 2 the States parties undertake to ensure the equity of rights, provided by the Covenant “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. ” Article 26 speaks about equity of all persons before the law, and provides an obligation of States to “guarantee to all persons equal and effective protection against discrimination on any ground”.

Article 2 further explains, that each member State undertakes to ensure, that every person, whose rights and interests have been injured is able to access an effective remedy, both in the form of governmental authority or judicial remedy, and that the rulings, issued by such an organ are effectively enforced. Non-discrimination requirement means not just formal equal treatment, but substantive obligation of States to ensure, that everyone has equal ability to realize his/her rights dependently on his/her situation.

Freedom from discrimination is not just the formal recognition of equal rights in law, but means substantive equality and ensuring that everyone has the opportunity to enjoy rights equally. It follows that “not all distinctions or different treatment constitute discrimination, and equality does not mean treating everybody the same” .

References

1. International Covenant on Civil and Political Rights, G. A. res. 2200A (XXI), 21 U. N. GAOR Supp. (No. 16) at 52, U. N. Doc. A/6316 (1966), 999 U. N. T. S. 171, entered into force Mar. 23, 1976 2. International Covenant on Economic, Social and Cultural Rights.

Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 3. Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948 4. Wingrove v. the United Kingdom ECHR judgment of 25 November 1996, Reports 1996-V, p. 1958 5. Leyla Sahin v. Turkey - 44774/98 [2004] ECHR 299 (29 June 2004) 6. Kim Gleeson, Moira Rayner. Worldwide Influence of the Universal Declaration of Human Rights and the International Bill of Rights. Available at:  http://www.universalrights.net/main/world.htm