Anthony Aust. Handbook of International Law

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36. For a translation from the Arabic, see BGG, p. 774 or www.al-bab.com/arab/human.htm. It is not yet in

force.

37. For the text of the Declaration, see BGG, p. 764.

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Outline of the principal civil and political rights

It may be helpful to summarise very briefly the more important civil and political rights, comparison

being made between the ICCPR, the ICESCR and the ECHR. But, for a more authoritative account

reference must be made to specialised works. (The references are to Articles of the ICPPR, the

ICESCR and the ECHR and its Protocols, as the case may be.)

Right to life (ECHR Article 2, ICCPR Article 6)

Taking a person’s life must be done in accordance with law, not arbitrarily. The ECHR is more

specific about the circumstances in which a person can be killed, such as in self-defence or to effect

an arrest. Protocol No. 6 to the ECHR abolished the death penalty, except in connection with a war.

Since 1994, new members of the Council of Europe have either to become a party to Protocol No. 6

or introduced a moratorium on the carrying out of death sentences. Protocol No. 6 is now binding on

all parties to the ECHR, except Russia which has been observing a moratorium since it became a

member in 1996. Protocol No. 13 of 2002 abolishes the death penalty in all circumstances. So far it

has twenty-nine parties.

The ICCPR does not itself prohibit the death penalty, but requires that it be limited to the most

serious crimes, and not be imposed retrospectively or for crimes committed when under the age of

eighteen or carried out on a pregnant woman. When ratifying the ICCPR, the United States reserved

the right to execute a person (except a pregnant woman) even if at the time of the crime he or she

was under eighteen.

The Second Optional Protocol to the ICCPR of 1989 requires the abolition of

the death penalty, and so far has fifty-four parties, some two-thirds being parties to the ECHR.

Prohibition of torture (ECHR Article 3, ICCPR Article 7)

No one shall be subjected to torture or to inhuman or degrading treatment or punishment. The

ICCPR adds ‘cruel’ treatment or punishment, and that no one shall be subjected to medical or

scientific experiments without his free consent. (The definition of torture in Article 1 of the Torture

Convention 1984 is designed for the purposes of that treaty, which requires

38. See UN Multilateral Treaties, Ch. .4. It was held to be unconstitutional by the US Supreme Court on

1 March 2005.

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the parties to make torture a criminal offence subject to quasi-universal jurisdiction.)

The

prohibition is now also customary international law.

The European Court of Human Rights decided in Soering that the extradition of a person to any

(in practice, non-ECHR) state where he is wanted for a crime for which he could be sentenced to

death, would, if he would then be likely to spend a lengthy period on death row, be a breach of

Article 3.

This obstacle can be overcome if the requesting state gives an undertaking that the

person will not be executed. But, nevertheless, it has had severe repercussions for ECHR states that

wish to extradite or deport a person who may be a threat to its security, but who might suffer ill-

treatment by the authorities of the destination state. The prohibition in Article 3 is absolute and not

subject to any national security exception, express or implied.

Prohibition of slavery and forced labour (ECHR Article 4, ICCPR Article 8)

The two Articles are identical in substance. Forced or compulsory labour does not include labour as

part of a criminal punishment, military service, to deal with emergencies, or normal civil

obligations.

Right to liberty and security (ECHR Article 5, ICPPR Article 9)

Although the ECHR is rather more detailed, the two Articles are the same in substance. No one shall

be deprived of his liberty except in accordance with law. Anyone arrested or detained shall be told

the reason and the charge, and shall be brought promptly before a judge and entitled to trial within a

reasonable time. He shall be entitled to challenge without delay the lawfulness of his detention

before a court, for example by

39. ‘[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a

person for such purposes as obtaining from him or a third person information or a confession, punishing

him for an act he or a third person has committed or is suspected of having committed, or intimidating or

coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity. It does not include pain or suffering arising only from, inherent

in or incidental to lawful sanctions.’

40. Soering, App. No. 14038/88; Series A, No. 161, 1989; ILM (1989) 1063; (1989) 11 EHRR 439; 98

ILR 270. See also Rehman [2003] 1 AC 153, para. 54.

41. Chahal (1997) 23 EHRR 413; 108 ILR 385.

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habeas corpus. A person wrongfully arrested or detained shall be entitled to compensation.

Right to a fair trial (ECHR Article 6 and Protocol No. 7, ICCPR Article 14)

Both treaties provide that for civil and criminal trials there shall be a fair and public hearing by an

independent and impartial tribunal. In a criminal trial, the accused shall be presumed innocent until

proved guilty and accorded certain minimum rights: to be told, in a language he understands, and in

detail, of the case against him; to have adequate time and facilities to prepare his defence; to defend

himself or through a lawyer of his choosing, with legal aid where necessary;

to examine witnesses

against him and to call witnesses in his defence; to have an interpreter free if he cannot understand

or speak the language of the court; to have the right to appeal to a higher court against conviction or

sentence; and to receive compensation for a miscarriage of justice. No one shall be tried or punished

again for an offence for which he has already been convicted or acquitted (the double jeopardy rule

or ne bis in idem).

No punishment without law (ECHR Article 7, ICPPR Article 15)

No one shall be convicted of an offence on account of an act that did not constitute an offence at the

time of the offence (nullum crimen sine lege), or be given a heavier penalty than that which applied

at the time.

Respect for private and family life (ECHR Article 8, ICCPR Article 17)

This right, being rather nebulous, has been a fruitful source of law-making by the European Court of

Human Rights. In Hatton, the Court held that, although the ECHR does not include environmental

rights as such, nevertheless Article 8 protects family life from unreasonable noise intrusion (in this

case aircraft noise). But the Court had to apply a test of ‘fair balance’, so taking into account the

interests of both individuals and the wider community.

42. See Steel and Morris v. UK, 2005, ECHR App. No. 6841/01.

43. (2003) 37 EHRR 28, p. 611.

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Freedom of thought, conscience and religion (ECHR Article 9, ICCPR Article 18)

This includes the freedom to change one’s religion or belief and, either alone or in community, in

public or in private, to manifest one’s religion or belief in worship, teaching, practice or observance.

The ICCPR adds that no one shall be coerced to adopt a religion or belief.

Freedom of expression (ECHR Article 10, ICCPR Article 19)

Everyone has the right to hold opinions and to receive and impart information and ideas without

interference by public authority and regardless of frontiers. The right was severely tested in Garaudy

v. France.

An author had been convicted of writing a book denying that the Holocaust had

happened. In considering the usual restrictions on the right set out in Article 10 paragraph 2, the

Court cited Article 17, which provides that nothing in the ECHR ‘may be interpreted as implying for

any state, group or person any right to engage in any activity or perform any act aimed at the

destruction of any of the rights and freedoms [in the Convention] or at their limitation to a greater

extent than provided for in the Convention’. The Court, following its previous Holocaust denier

decisions, found that the conviction had not breached the author’s human rights, the application was

manifestly ill-founded and so inadmissible.

Freedom of assembly and association (ECHR Article 11, ICCPR Articles 21–22)

Everyone has the right to peaceful assembly (meeting with others in public or private), freedom to

associate with others, and to form and join a trade union. The latter right is elaborated in Article 8 of

the ICESCR.

Right to marry (ECHR Article 12, ICCPR Article 23)

Despite the explicit wording of Article 12 of the ECHR (‘Men and women . . . have the right to

marry and to found a family’), and its own previous judgments, the European Court of Human

Rights held in Goodwin

44. App. No. 65831/01. Decision of 24 June 2003; 2003- -HUDOC (www.echr.coe.int/Hudoc.htm).

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that it was a breach of the Article to bar totally a (male to female) transsexual from marrying a

man.

Freedom of movement (ECHR Protocol No. 4, ICCPR Article 12)

Everyone lawfully within the territory of the state has liberty of movement and the freedom to

choose his residence. He is also free to leave a country, including his own. A national shall not be

expelled from his own state or arbitrarily prevented from entering it. The United Kingdom is not a

party to the Protocol, and has entered a reservation to the Covenant in effect reserving the right to

control immigration in respect of certain UK nationals without close connections with the

metropolitan territory.

Right to free elections (ECHR Protocol No. 1 (Article 3), ICCPR Article 25)

Elections must be held by secret ballot to allow every citizen to give free expression to his opinion.

In Hirst (No. 2), the European Court of Human Rights held that the United Kingdom was in breach

of the Protocol in denying all convicted prisoners the right to vote. Although the national legislature

has a wide margin of appreciation as to what would be fair restrictions on that right, the British

Parliament had never considered the matter in modern times.

This judgment is a good example of

the creative approach of the Court, which sees the ECHR as ‘a living instrument to be interpreted in

the light of present-day conditions’.

Consequently, the United Kingdom has requested that the

case be referred to the Grand Chamber. The decision of the Grand Chamber is awaited.

Right to property (ECHR Protocol No. 1)

The right not to be deprived of possessions, except in the public interest and in accordance with the

law, is also enjoyed by legal persons, such as corporations. Deprivation without compensation would

normally be a breach.

However, the right of a state ‘to enforce such laws as it deems necessary to

control the use of property in accordance with the general

45. App. No. 28957/95; (2002) 35 EHRR 18, p. 447; (2003) AJIL 658.

46. See p. 180 above on British nationality.

47. App. No. 74025/01; (2004) 38 EHRR 40, p. 825.

48. Bankovic (n. 6 above), para. 64.

49. See Lithgowv. UK (1986) 8 EHRR 329, para. 121.

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interest’ is not affected and should usually not require compensation.

Most complaints are about

nationalisation or planning decisions. Neither the ICCPR nor the ICESCR has an equivalent

provision, having been adopted when communist states were still fairly numerous and influential.

Right to education (ECHR Protocol No. 1, ICESCR Article 13)

The later provision in the ICESCR is much more detailed.

Prohibition of discrimination (ECHR Article 14; ICCPR Article 26)

The right shall be secured without discrimination on any ground, such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a national minority,

property, birth or other status. No one shall be discriminated against on any such grounds by a public

authority (ECHR Protocol No. 12).

General qualifications to rights

It would be a mistake to think that all human rights are expressed as absolute. Although some in the

ECHR and the ICCPR are absolute (the right to life, prohibitions on torture and slavery, and

punishment not in accordance with law), others either have specific conditions or are qualified in

general terms. This seeks to balance the rights of the individual and the broader interests of the

community in a democratic society. Depending on the particular right, the qualifications may allow

for exceptions for the protection of morals, health, private life, juveniles and the rights and freedoms

of others, or in the interests of public order, public safety, crime prevention, national security or

justice. Each qualification is carefully formulated, and most provide that any exception must also be

in accordance with the law and be necessary in a democratic society. These provisions allow a

necessary degree of flexibility in implementation. In addition, the European Court of Human Rights

also allows a margin of appreciation in complying with the ECHR, which is broader in cases

involving personal morality.

This sensible approach avoids the danger that the ECHR might have

become a one-size-fits-all instrument that could not

50. See Alconbury v. Secretary of State [2003] 2 AC 295, paras. 72–3.

51. Adopted in 2000 and not yet in force.

52. See Shaw, p. 330.