Bill of Rights by Sileshi Zeyohannes

Section I: International Perspective1

In this Chapter, we will discuss the Human Rights protection systems developed
under the support of the United Nations. Therefore, this Chapter is limited to the
examination of the protection provided by what is called the main International Bill
of Rights; i.e. the UDHR, ICCPR, and ICESCR. However, we begin our discussion
with the initial human rights concerns of the UN as reflected in its Charter.

At the end of WW-II, there was a concern that the atrocities and destructions caused
by the war wouldn’t happen again, for that, an international organ was deemed
necessary. As a result, the UN was established by a charter adopted in 1945 by the
San Francisco Conference. At the time of the preparation of the Charter, there were
suggestions for the incorporation of a Bill of Rights, though there were some who
opposed the idea. As a result, the Charter didn’t incorporate bill of rights. However,
the document contains some important references to the promotion of Human
Rights, which are worth considering.

Universal Declaration of Human Rights (UDHR)

History

Immediately after the coming into force of the Charter, a recommendation calling the
ECOSOC to establish a Commission on Human Rights and direct it to prepare an
International Bill of Rights was adopted by the General Assembly in February 1946.
The Council acted on it immediately, and the Commission on Human Rights was
established. It was recommended by majority vote that since the Council consisted of
representatives of governments, the members of the Commission should be elected
by the Council from a list of nominees submitted by governments, but serve in an
individual capacity. Some States opposed this proposal, notably the former USSR,
and the Council decided the Commission should consist of eighteen members,

1
Developre, Haragewoin Birara and et la paper prepared for class discussion. The Paper has taken
insight from the seminar the developer has participated in Austia, Vienna on Human Rights of
Women.
appointed by the governments which were selected by the Council. Finally, the
Council decided to leave it to the governments concerned to decide whether to
appoint government officials or independent persons. So governments are members
of the Commission, while its members attend as representatives of governments.
(Membership has increased over a period of years).

In 1947, the Commission assumed its first task, i.e., the drafting of bill of Rights in
three parts; a Declaration, a Convention containing legal rights and obligations, and
measures of implementation – a system of international supervision and control. A
committee composed of eight members prepared and submitted through the
ECOSOC a draft declaration to the General Assembly and the Declaration was
adopted on 10 December 1948. The Commission got established, headed by Eleanor
Roosevelt and by the Modern Human Rights Movement. The Universal Declaration
of Human Rights (UDHR) by Resolution 217 (III), with forty-eight votes in favor,
none against, and eight abstentions.

The Universal Declaration of Human Rights is not the product of one over a night; it
is a cumulative effect of many acts that had taken place before 1948. In other words,
major historical acts pertinent to the UDHR include the following;

1. Magna Cartha known as the Great Charter, was signed in 1215 by King John of
England. The two most important legal clauses of Magna Cartha included are:

a. Clause 40 promises “to no one will we sell, to no one will we deny or delay
right of justice”. This clause establishes the principle of equal access to the
Court for all citizens without exorbitant fees.

b. Clause 39 promises “no freeman shall be taken or imprisoned or dismissed

except by lawful judgment of his peers or by the law of the land”. This clause
establishes that the King would follow the legal procedure before he punishes
someone. Because of this departure, it is considered as a cornerstone for
democracy; it became the first step leading to codifying human rights laws.
2. The second act that affected the codification of Human Rights is the declaration of
rights of citizens. The declaration was adopted by the French Revolution. The
declaration stated that men are born free and equal with the rights to liberty,
property, and security. All people are guaranteed equality before the law, granted of
freedom, unlawful arrest, freedom of speech, press, religion... etc. This concept of the
declaration served as the main point in the declaration of Human Rights.

3. The American Declaration of Independence in 1776. This Declaration laid two

facts, namely:

a) The natural equality of man and have certain inalienable rights,

b) The purpose of the government is to secure those inalienable rights, and

c) Of man the government gets the power; i.e. from the consent of the
governed people.

All these declarations contributed a lot to the development of UDHR. The concept of
the International Human Rights owes its recognition beginning to the end of the
Nazi times (1939-1945) as millions of people – especially the Jews – were unlawfully
exterminated by the Nazis. Allied Forces that won the war set out the UDHR to
ensure that such a thing could never happen again.

The outline of the Universal Human Rights Declaration includes the right of life,
liberty, the security of person, freedom of conscience, religion, opinion and
expression, association and assembly, and freedom from any arbitrary arrest. The
Socialist Countries placed a higher emphasis on the right to work and adequate
housing, while many liberal Capitalist Nations believe in the freedoms from
government control on matters such as the right to privacy, fair trial, and free press
is more important. In some societies, the concept of Human Rights is shaped by
religion such as Llama, but despite these differences, there is wide agreement in the
content of the Declaration, on the adoption of the Fundamental Rights such as
protection against arbitrary arrest, torture, and summary execution.
Having stated these facts would like to mention that there are some scholars now
who argue that UDHR does not possess a legally binding force; that is to say, it can
not create any obligation against member states which might say no, pointing that
there are no mechanisms set for the implementation of the articles outlined in the
declaration; i.e. the UDHR is simply a statement of intent and principles, nothing
more. Why? Because it simply is a Declaration, it is not a Treaty or Convention.

Nevertheless, some states immediately included selected portions of UDHR in their

domestic laws or in their respective Constitutions. This shows that the UDHR has
got quite a significant recognition by UN member governments. Due to its age, the
UDHR got the name Customary International Law and now constitutes a standard
to all – applicable to all nations whether or not they have expressed their consent or
not.

Over the years, a series of Conventions were introduced by signatory states to make
the UDHR binding over them. Nonetheless, various and differing degrees of Human
Rights violations are committed, some of the gravest of recent times being those
committed by Cambodia’s Khmer Rouge Movement in the 1970‟s and the Tutsi-
Hutu genocide in Rwanda and Burundi (1998).

In Ethiopia, during the years that followed the 1974 Revolution, killings between
opposing political parties and factions took place. As the PMAC Regime permitted
its proponents to arrest without legal warrant and even kill without due process of
law, some of its officials got convicted on charges of genocide and crime against
humanity and stood trial at the special Bench of Federal Court, but prosecuted by the
special office of Prosecutor.2

The Rights Protected

The Declaration is the first comprehensive International Human Rights instrument

incorporating civil, political, economic, social, and cultural rights in one document.
However, as its name implies, it neither was intended to neither impose legal

2
According to the Ethiopian law, they have been sentenced, some in absentia. In view of closing this
dark chapter of history and as part of the reconciliation effort, burial ceremonies at various parts of the
Country have been held as well as a memorial is being finalized at the Mesquel Square.
obligations on states nor establish a supervisory organ. As a result, some critics have
questioned its significance. Its defenders state that apart from and in addition to
establishing goals for states to work towards, its adoption by the UN General
Assembly without a dissenting vote reflects the international moral commitment of
states; it imposes a moral obligation that states may not ignore. The operative part of
the Preamble reads as follows: “The General Assembly proclaims this universal
declaration of Human Rights as a common standard of achievement for all peoples
and all nations, to the end that every individual and every organ of society, keeping
this Declaration constantly in mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and
observance, both among the peoples of member states themselves and among the
peoples of territories under their jurisdiction.”

Section II: International Convention on Civil and Political Rights (ICCPR)

History

After the adoption of the UDHR, the Commission on Human Rights embarked on
the second part of the Bill of Human Rights, namely the development of norms that
were indisputably binding to those states to adhere to. The Commission proposed in
1950 to keep all rights in one Convention. However, the USA and some other
Western Countries argued against this proposal and in 1951 they succeeded in
persuading the General Assembly not to follow the recommendation of the
Commission. Instead, it was decided that two separate conventions be adopted: one
on civil and political matters the other on Economic, Social, and Cultural. In
hindsight, one can question whether this decision has well served the cause of
Human Rights. Today, most proponents find it essential to emphasize the
interrelationship and mutually reinforcing nature of all these various rights. The
tendency in the subsequent development of standards, starting already in the sixties
with the convention on the Elimination of Racial Discrimination has been to both
bring up a particular subject and regulate it in greater depth; protection of particular
needs. Concerning the substantive rights dealt with in treaties or instruments of later
 times such as the kinds of refugees, against racial discrimination, against the
discrimination on women, on children, on minorities – this approach has been
followed.

It should also be noted that although the rights dealt with within the Covenants are
contained in the two different documents, it has often been emphasized in UN
resolutions and documents that the Conventions belong together and should be seen
as a whole. As of January 2001, 146 states have become parties to the Covenant on
Civil and Political Rights, while 142 to the Covenant on Economic, Social and
Cultural Rights. Both Covenants contain some identical provisions such as the right
to self-determination and the principle of nondiscrimination. Besides they have
clauses that safeguarding rights should not be used as a pretext for violation of other
rights.

The Rights Protected

The ICCPR lists down the rights which the Covenant is designed to protect under
Articles 6- 27. One can also include the right to self-determination to the list.
Generally, these rights can be summarized as follows:

I. The right to life

II. Freedom from torture and inhuman treatment
III. Freedom from slavery and forced labor
IV. The right to liberty and security
V. The right of detained persons to be treated with humanity
VI. Freedom from imprisonment for failure to pay debt
VII. Freedom of movement and choice of residence
VIII. Freedom of aliens from arbitrary expulsion
IX. The right to fair trial
X. Protection against retroactivity of the criminal law
XI. The right to recognition as a person before the law
XII. The right to privacy
XIII. Freedom of thought, conscience, and religion
 XIV. Freedom of opinion and expression
XV. Prohibition of propaganda for war and incitement to national, racial or
religious hatred
XVI. The right of assembly
XVII. The right to marry and found a family
XVIII. The right of the child
XIX. Political rights
XX. Equality before the law
XXI. The right of individuals belonging to linguistic, cultural, or religious
minorities

The normative content of these rights is elaborated by the Human Rights Committee,
which provides the most authoritative interpretation of the Covenant. Thus, one is
required to consider the general comments of the Committee on each right, because
the Human Rights Committee is the main organ supervising the implementation of
the Covenant’s provisions, though not binding, are the most authoritative
interpretations.

Enforcement Mechanisms

As already noted one of the controversial issues during the drafting process was the
measures of implementation to be included in the Covenant. Finally, an agreement
has been reached for the establishment of a Human Rights Committee. Article 28 of
the Covenant provides for the establishment of this Committee which thus becomes
the principal organ of implementation of the ICCPR. The Committee consists of
eighteen (18) members. As regards the qualifications of members of the Committee,
in the first place they must be nationals of states which are parties to the Covenant;
secondly, they must be persons of high moral character and recognized competence
in the field of Human Rights and, thirdly, consideration shall be given „to the
usefulness of the participation of some persons having the legal experience‟.
According to Articles 29 and 30 of the Covenant, members are elected by secret
ballot by state parties from among the nominees submitted by state parties
themselves. The Covenant also provides that the Committee may not include more
than one national of any state and that consideration shall be given to the principle
of equitable geographical distribution and the representation of the different forms
of civilization and the principal legal systems. Article 28(3) of the Covenant provides
that the members of the Committee shall serve in their capacity. It means that
though they were nominated by state parties, once they are elected they are not
government (state) representatives. This is intended to ensure their independence
and impartiality in discharging the duties entrusted to them by the Covenant. The
Covenant deals also with a term of office, working procedure, voting, etc ...

The Committee monitors the implementation of the Covenant in the following two
ways: a) by considering state reports, and b) by considering communications
(“complaints”).

(1) Considering State Reports

The Covenant adopted reporting procedure as the principal means of

implementation. Article 40 of the Covenant imposes on states the duty to submit
reports (initial and periodic). The reports shall indicate:

a) the measures states have adopted to give effect to the rights recognized in
the Covenant,

b) the progress made in the enjoyment of those rights, and

c) the factors and difficulties, if any, affecting the implementation of the

Covenant.

These reports shall be transmitted to the secretary-general of the United Nations,

who shall transmit them to the Committee for consideration.

Some criticize the reporting procedure, in general, as not effective by pointing out
that reports prepared by state (government) officials would naturally not give the
real Human Rights situation in their countries. Besides, some states fail to submit
reports properly and/or timely.
Though it has been acknowledged that these reports by themselves do not constitute
an effective measure of control, they open an opportunity for critical examination,
for drawing attention to gaps or inaccuracies in the information provided, and for
comparing official statements with other sources of information on the same subject.

It has been suggested that for any reporting system to be effective, the following
elements shall exist; (a) the cooperation of governments in providing full
information, (b) the possibility of obtaining further information from other
responsible sources, (c) the examination of information obtained by independent
persons who are not government officials, and (d) the right of some organ or body
taking part in the procedure to make suitable recommendations with the view to
induce improvements in the law, procedure or practice of the country concerned.

One of the effective procedures of international monitoring and control of states'

behavior vis-à-vis Human Rights is the complaint procedure. This is a procedure by
which one may submit complaints to and obtain a remedy from the appropriate
organ alleging that a state party has not discharged its obligation; i.e. violated the
rights recognized in the Covenant. Does the ICCPR provide for such a procedure?
The Covenant doesn’t use the word “complaint”. As state parties seem to have
deliberately avoided the use of this term, which appears to make them sensitive in
fear of being accused of violation of rights before any international organ, the
Covenant rather uses “communications” as a moderating term. The Covenant
recognizes two types of communications, namely: inter-state and individual
communications

(a) Inter-State Communications

As cited earlier, during the drafting process of the Covenant, one of the controversial
points was the mechanism of international control and supervision. By 1950 the
Commission on Human Rights had decided that there should be a permanent body
of independent persons to examine alleged violations; normally – non-governmental
organizations. Also, since the Covenant provides for a procedure by which inter-
state disputes can be submitted and considered under Articles 40, 41, and 42, the
Human Rights Committee has the power to entertain inter-state communications if
the conditions necessitate. Here, one of the most important conditions is whether a
state has recognized, by a separate act, the competence of the Committee to consider
inter-state disputes. A separate declaration recognizing this competence, in addition
to the act of ratification, is a prerequisite. Meaning, the mere act of ratification of the
Covenant does not amount to recognizing the competence of the Human Rights
Committee to consider inter-state communications. So, the Committee can examine
communications only if (1) the state alleged to have violated human rights has made
a declaration recognizing the competence of the Committee, and (2) the complaining
state, the state that has submitted the communications, have made a similar
declaration.

Even if the above conditions are fulfilled, a state party has to first follow certain
procedures before it can submit its communications to the Committee (see Art.
41(1a-b). These procedures are meant to enable the states concerned to adjust the
matter by themselves. The Covenant envisages, in the first place, bilateral
communications and negotiations between the two States concerned. If the two
states fail to solve the matter, either of the states may then refer the matter to the
Committee by a notice submitted to the Committee and the other state. The
Covenant outlines the time within which the different steps may be taken.

The Committee examines the communications in closed sessions (meetings). Before

dealing with the merits of the case, the Committee has to first ascertain whether the
communications are admissible or not. One important notion in this regard is the
principle of exhaustion of local remedies. It holds that one should not seek or obtain
remedies at an international level without exhausting available local remedies.
Article 41(1c), thus, provides that the Committee shall deal with a matter only after it
has ascertained that all available domestic remedies have been invoked and
exhausted in the matter. However, the last paragraph states that exhaustion of local
remedies shall not be a prerequisite if the application of such remedies is
unreasonably prolonged. In such cases, the committee may proceed by calling for all
relevant information and the state parties may be represented, make oral and written
submissions. The Committee, however, cannot pass its opinions on violations. It is to
make its good offices available with a view to a friendly settlement is not achieved;
the committee is required to submit a report which shall be confined to a brief
statement of the facts, with the functions of the committee, under Article 41,
concerning inter-state communications are very much limited. However, Article 42,
of the covenant provides another procedure. If the matter referred to the Committee
under Article 41 is not resolved, the committee may, if those States consent, appoint
an ad hoc conciliation commission. The Commission cannot pass binding decisions.
Its activities are more or less similar to that of the Committee.

This is a procedure by which individuals may submit communications, to obtain

remedy/remedies, to the Human Rights Committee claiming that a State party has
violated their rights recognized by the Covenant. As we have seen earlier, one of the
controversial questions during the drafting process of the covenant was on
mechanisms of enforcement. Arguments for & against the idea of an individual
petition system were raised. Finally, the 1966 Covenant didn’t recognize the
individual communications procedure because States were not ready to accept it.
The first Optional Protocol provides for such procedure to the Covenant, which is a
separate instrument. Thus the individual communications procedure applies only in
respect of those States that have ratified the Optional Protocol.

It has been commented that …the real test of the effectiveness of an international
system for the protection of human rights is whether it permits an individual who
believes that his rights have been violated to seek a remedy from an international
institution ….According to the classic conception, international law is the law that
governs relations between States, and the individual has no place. His interests are
supposed to be protected by the State of which he is a national, and he has no locus
standi before an international tribunal or international organizations‟…. However,
this conception of international law has changed over the years.

As a result of the change of mind of States, a move towards providing individuals

with the mechanism of submitting complaints was made. Thus, the Optional
Protocol allowing individual communications procedure was adopted separately but
in the same year as the ICCPR and entered into force on 23 March 1976.

Article 1 of the Optional Protocol stipulates that a state party to the Covenant that
becomes a Party to the present Protocol recognizes the competence of the Committee
to receive and consider communications from individuals subject to its jurisdiction
who claim to be victims of a violation by that State Party of any of the eri8ghts
outlined in the covenant. Articles 2 & 3 of the protocol introduce the rule of
exhaustion of local remedies and provide that communications shall be considered
inadmissible if they are anonymous, abusive, or incompatible with the provisions of
the Covenant. Article 5, paragraph 2, introduces a further condition of admissibility,
excluding communications that relate to a matter which is being examined under
another procedure of international investigation or settlement. Thus, the covenant
embodies the principle of pendency, which is found in many national laws/
jurisdictions. Paragraph 2 of Article 5 also repeats the rule of exhaustion of local
remedies, adding that the rule shall not apply if the domestic remedies are
unreasonably prolonged. Article 4 & the remaining paragraphs of Article 5 deal with
the procedure of the Committee when dealing with individual communications.
According to Article 4(2), the communications must be communicated to the State
Party concerned, which shall within six months submit to the Committee written
explanations or statements clarifying the matter and the remedy, if any, that may
have been taken by that State. Communications are to be examined in closed
sessions (Art.5(3)), and according to Article 5(4) the Committee shall forward its
views to the State Party concerned and to the individual.

Section III: The International Convention on Economic, Social and Cultural

Rights (ICESCR)

One of the points of controversy during the drafting process of the International Bill
of Rights was whether to include Civil, Political, Economic, Social, and Cultural
Rights in one International Covenant. Finally, it was decided that Economic, Social,
and Cultural Rights should be included in a separate one. Consequently, this was
agreed upon (entered into force on 3 January 1976) and the International Covenant
on Economic, Social and Cultural Rights came into being upon the approval of the
General Assembly of the UN on 16 December 1966. The rights contained in the
ICESCR are similar but different from those found in the ICCPR except for some
rights. For example, the right of all peoples to self-determination is common to both
Covenants (See Article 1 of both Covenants).

The Covenant of Human Rights consists of 31 Articles of which the first 15 are of a
normative character and the last 16 of are a procedural nature. In part III, it sets out
many of the fundamentals for the well being and prosperity of the individual. Each
state party is under an obligation to undertake steps “to the maximum of its
available resource to with a view to achieving a progressively the full realization of
the right recognized in the present covenant by appropriate means including
particularly the adoption of legislative measures.”

The obligations assumed by state parties and the international control under the
ICESCR are also different from those found under the ICCPR. A core provision in
Article 11, recognizes the right of everyone to an adequate standard of living,
including adequate food, clothing, and housing and to the continuous improvement
of living conditions.

Based on this provision, some people argue that the obligation assumed by state
parties is not intended to be of immediate application. They hold that the Covenant
doesn’t require states to implement the rights immediately, it rather lists standards
which they undertake to promote and which they pledge themselves to secure
progressively, to the extent possible, having regard to their resources in order to
achieve progressively the full realization of this rights.

Therefore the difference between these two major covenants lies in the method of
implementation. The protection of most Civil and Political Rights requires few
economic recourses if any. With minor exceptions, little more than legislation and a
decision not to engage in certain illegal practices, not to torture people, not to
imprison them arbitrarily, etc… seems to suffice.
Guaranteed Rights

The Covenant sets out a long list and more detailed definitions of Economic, Social,
and Cultural Rights than those contained in the UDHR. The Economic, Social and
Cultural Rights protected by the Covenant include the following:

I. The right to work and rights in work;

II. The right to social security, including social insurance;
III. The right to protection of the family, including special assistance for mothers
and children;
IV. The right to an adequate standard of living, including adequate food, clothing
and housing, and the continuous improvement of living conditions;
V. The right to the highest attainable standard of physical and mental health;
VI. The right to education;
VII. The right to participate in cultural life and enjoy the benefits of scientific
progress.

The contents of these rights are well elaborated by the Committee on Economic,
Social and Cultural Rights. This Committee was created by the ECOSOC to assist it
in the supervision of the implementation of the Covenant. One of the distinguished
works of this Committee is to interpret the provisions of the Covenant through what
is referred to as General Comment. For a better understanding of the normative
content of these rights and corresponding state obligations, you are required to look
at the respective General Comments. One such comment on the right to work is
provided at the end of this section.

The Covenant clearly imposes duties of some kind on states parties. It becomes
necessary that state parties discharge their duty. The main system of control and
supervision provided by the Covenant is a system of reporting, which the state
parties have the duty to submit periodically to the Secretary-General of the UN,
specifying the measures they have adopted and the progress made in achieving the
observance of rights listed. The Secretary-General will send all reports to ECOSOC
for its consideration. The ECOSOC may make arrangements with the specialized
agencies to obtain reports on the progress made in achieving the observance of those
provisions of the Covenant, falling within the scope of their activities. This is
intended to enable the ECOSOC to obtain relevant information from the Specialized
Agencies while considering state reports. The ECOSOC may also transmit the
reports of states to the Commission on Human Rights for study and general
recommendation, and the state parties may then submit to the Council the comments
of their general recommendations. Finally, the Council may submit a summary of
the information it has received, together with its reports and recommendations of a
general nature to the General Assembly and at the same time draw appropriate
matters to the attention of other organs of the United Nations and the specialized
agencies concerned.

It is clear that the Covenant doesn’t establish a new organ of implementation. It

rather delegates the supervision of its implementation to an already existing UN
organ; i.e. ECOSOC. This has been criticized by some, on the pretext that members of
the ECOSOC are state representatives and not independent experts and on the
grounds that the ECOSOC has other duties under the Charter.

In 1985, the ECOSOC set up a committee consisting of eighteen experts elected in

their personal capacities and on the basis of equitable geographical distribution. This
Committee is known as the United Nations Committee on Economic, Social and
Cultural Rights. The role of this Committee is to assist the ECOSOC in supervising
the Covenant.

Unlike the ICCPR, this covenant does not recognize communications procedures.
For that matter, NO communications procedure is recognized yet, officially. It is
important to compare this with the European Social Charter, which is intended to
safeguard Economic, Social, and Cultural Rights at the continental level. Though the
Charter was adopted in 1961, it also didn’t recognize communication’s procedure.
The Third Optional Protocol to the Charter adopted in 1995 provides for a system of
collective complaints.
As stated earlier, the Committee on Economic, Social, and Cultural Rights provides
an authoritative interpretation of the provisions of the Covenant. By so doing, it
explains the contents of the rights and the corresponding obligations of state parties.
Because such explanations are too many to be reproduced here, you are required to
look at them. Then find an example of what the Committee has to state under
General Comments. This particular comment explains the content of the right to
work and the obligation of the State and even non-state actors.

Despite it is problematic to evaluate and has weaknesses in gathering

communications, implementation of the ICESCR directly relates to a state’s
economic strength and institutional capacity. It is problematic due to the complexity
of defining the minimum acceptable standard; i.e. what is adequate and acceptable
vary among countries and groups within countries. Since state parties have different
economic, cultural, social standards, it was not possible to formulate consistent
indicators of progressive realization in addition to furnishing a monitoring body.
This implies that the ESC Committee is supposed to devise a mechanism and value
the incremental changes as to the quality of life of different societal groups. Lack of
operational standards, translating abstract legal norms into minimum standards to
be followed by state parties is as well difficult to set and assess their own
performance.

And, so, without effective monitoring mechanisms in place, state parties can not be
strictly held responsible for their non-proper implementation or even violation of
rights. This problem partly occurred due to the wordings of the provision; the
Covenant’s Article 2/1 made state parties take steps according to available recourses
such as to achieve the full realization of rights, progressively. This, for one, seems to
create ambiguity in evaluating the full realization of those rights of the Covenant vis-
à-vis available resources. The other problem is that this Covenant imposes only
programmatic obligations upon governments, whereas the rights to be fulfilled
incrementally through ongoing programs were presumed to be obligations.

From the major reasons stated above, we can say that there are loopholes in setting a
minimum standard with regard to certain rights as there are several state parties that
cannot meet minimum standards. This makes us note the existence of a very wide
gap between aspired set standards in the Covenant and prevailing situations in the
different countries of the world. For example, the covenant states the right to work,
right to medical care, and right to education. These rights, when being implemented,
are directly related to the economic resource of any state party. All the same, it is not
quite a defense for state parties to state that “this is the maximum available resource
we can give to our subjects.” as long as it cannot prove that it really is so. Due to this
and the other factors mentioned like lack of consistent parameters, eligible
„communication‟ mechanisms, etc.., it is difficult to put the infringer accountable
and make it receive the consequences thereof.

Despite all this, when Limburg Principles were adopted by the ESC Committee, it
tried to elaborate principles for understanding and determining what constitute
violations of ICESCR, but provided little guidance on how to identify and actually
measure concrete violations in social and political contexts especially in the
violations resulting from specific state actions related to patterns of discrimination
and taking place due to state’s failure to fulfill the core minimum obligations
contained in the Covenant. In general, as the Covenant’s implementation depends
upon the specific countries context, it will remain controversial to come-up with a
universal evaluation and condemning violator’s mechanisms.

Difference between ICESCR and the ICCPR

The differences offered clarity to the UN Human Rights Charter by showing how
easily it can be violated and is not specific enough. On the other hand, it provided
detailed rights by making the instrument binding. But it also contains „Derogable
Rights‟ in Article 4, which made state parties set aside those rights for the duration
of public of emergency, which is proclaimed as a time which threatens the life of the
nation which have of temporary nature except for the rights stated under Articles
6,7,8, paragraphs 1,2,11,15,16 and 18.

This Convention on part VI deals with institutions and procedures of supervision

and control. One of the controversial issues during the drafting process was the
measures of implementation to be included in the Covenant. Human Right Article 28
of the Covenant provides for the establishment of this Committee which thus
becomes the principal organ of implementation of the ICCPR. The Committee
consists of eighteen (18) members – persons of high moral character and recognized
competence in the field of Human Rights. (As regards the qualifications of its
members, election procedures, etc .., similar to ICESCR.) The committee monitors the
implementation of the Covenant in two ways: a) by considering State reports, and b)
by giving general comments.

As most of the procedures employed here are similar to those outlined above, we
mention only the different, important ones.

State reporting: this procedure is adopted as the principal means of implementation.

As per Article 40 of the Covenant, state parties have the duty to submit reports
(initial and periodic) as mentioned above. And in order for any reporting system to
be effective, the following elements shall exist: (a) the cooperation of governments in
providing full information, (b) the possibility of obtaining further information from
other responsible sources, (c) the examination of the information obtained by
independent persons who are not government officials, and (d) the right of some
organ or body taking part in the procedure to make suitable recommendations with
a view to improvements in the law or practice of the country concerned. Also, the
information given by the state is verified by asking for information from NGO’s,
individuals.

The General Comment: since the committee is interested in the proper

implementation of the Covenant, it gives comments on the reports presented when
found appropriate. It could be a general and specific comment. The General
Comment of the Committee focuses on how that state tried to implement the
Covenant, while the Specific Comment deals with the report of the state and might
suggest and give recommendations by expressing its satisfaction or by stating the
area of concern which that state party should improve. In addition, due to the fact
that ICCPR has an optional protocol and has separate implementation mechanisms,
it empowers individuals to „communicate‟ to the committee provided that they
have exhausted their local remedies. From this, we can presume that it has diverse,
intangible, evasive, or strong allegations as well as supervision mechanisms.

The language and terminologies used are also different in this covenant it has terms
like everyone has right to, no one shall be, everyone, all persons … etc this indicates
that this Covenant is focusing on individuals who are subject to violation of Human
Right rather than sates who are signatory to the covenant. This Covenant, in
addition, doesn’t depend on the resource availability of a state rather a goodwill to
be a signatory and be obligatory on the wordings of the Convention.

Thus, to summarize:-

1. Signatories of this Covenant, since they are state parties, have obliged
themselves to undertake the appropriate steps to achieve the realization of the
rights enshrined in the document. From the provision of Article 2, it’s
understandable that states are not compelled to provide the rights to their
subjects more than what it can supply and subjects can not ask those rights as
of rights; i.e. state can only provide to the extent of the maximum resource
available which, by it, very nature, is not uniform throughout the world. And
it is difficult to set a minimum standard which can be followed by every state.
This allows each respective state party to be evaluated and monitored with
regard to its economic, social, and cultural standards. It is also clear that the
Covenant doesn’t establish a new organ of implementation. It rather delegates
the supervision of its implementation to ECOSOC.

2. The Covenant sets out a long list and more detailed definitions of
Economic, Social and Cultural Rights than those contained in the UDHR from
Article 1 to 15, which has loopholes, seems non-binding, etc...

3. The language and terminology employed are different from that of ICCPR
in that it makes state parties rather than individuals involved responsible.
With regard to the availability of resources, particularly, any government can
use it as its defense as long as it can prove the same.