Professor S. Sarath Mathilal De Silva

First Optional Protocol to the ICCPR adopted by the United Nations in 1966 came into force in 1976. The Optional Protocol I is an adjunct instrument to the Covenant, which entered into force in 1976 at the same time as the Covenant. Thus States acceding to the Optional Protocol empower the Human Rights Committee, established under the Covenant, to receive communications from individuals who claim to be victims of a violation of any of the rights set out in the Covenant. In practice, the Committee also accepts communications from that individual’s legal representatives or from close family members, if the individual is not in a position to submit a communication personally.

The Committee can consider a communication from an individual only after all available domestic remedies have been exhausted- that is, after the matter has been placed before the national courts or competent administrative authorities. Also the State complained against must be a party to both the Covenant on Civil and Political Rights and the Optional Protocol. After a communication has been declared admissible, the Committee in closed session examines the communication and discusses the merits of the case. When the Committee has finished considering the individual’s complaint and the State Party’s reply, it can make its views known on whether or not the rights in the Covenant have been respected.

Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty adopted in 1989 entered into force in 1991 in accordance with Article 8 of that Protocol. In terms of Article 1(1) of the Second Protocol, no one within the jurisdiction of a State Party to this Optional Protocol shall be executed. Article 1(2) further adds that each State Party shall take all necessary means to abolish the death penalty within its jurisdiction. Moreover, Article 2 states that no reservation is admissible to this Protocol except as provided therein. In terms of Article 6 of the Second Optional Protocol, provisions of this Protocol shall apply as additional provisions to the ICCPR on adoption of it by the State Party.

Indivisibility

The traditional constitutional models adopted by countries such as Sri Lanka and India giving priority to civil and political rights and relegating economic social and cultural rights to the realm of Directive Principle of State Policy, should be replaced by the principle of indivisibility of human rights in State Constitutions, viewing human rights as a multifaceted and integrated concept. The adoption in 1966 of two separate Covenants - ICCPR and ICESCR did harm to the scheme of indivisibility reflected in the UDHR with different enforcement mechanisms. The global innovative move made by Vianna Declaration on Human Rights (1993) which again reaffirms human rights as being the universal, independent and individual gives firm expression to this sacrosanct principle.

Moreover, as the principle of indivisibility is becoming a key element in emerging literature on human rights, it is recommended that indivisibility of human rights should be recognized as an indispensable principle of constitutional rule for Sri Lanka too. If the constitutional governance is to serve its legitimate purpose States should be made under duty to protect and uphold human rights in a holistic manner, giving due regard to both civil and political rights as well as economic social and cultural rights in their Constitutions.

The Obligations of the State Party

The ultimate goal of international human rights norm- settings is their full and effective implementation through domestic procedures without the need for recourse to international mechanisms. In fact access to international mechanisms is usually limited and may be resorted to only if domestic mechanisms are not available or adequate.

Article 2 (1) is the key to the ICESCR. It sets forth the kinds of obligations, States parties undertake when they ratify the Covenant. It identifies the steps the government must take in order to realize each substantive right. Social rights are perhaps seen as different from civil and political rights in that they are supposed to be implemented progressively, or over time, rather than immediately. Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) requires States parties to ‘respect and ensure’ the rights set forth in that Covenant. The ICESCR, by contrast, requires States Parties to ‘take steps …. To the maximum of available resources’ to realize its rights.

The Obligations to Respect, Protect and Fulfill

A better way to conceive of the obligations under the ICESCR, and human rights obligations in general, is that they include three types of obligations. The obligation to respect requires the State not to do anything that would actively interfere with the realization of a right (e.g. banning unions, forced evictions). The obligation to protect requires the State to ensure that individual’s rights are not violated by private non- state actors, such as corporations, landlords or paramilitaries (e.g. refusing to enforce labour laws, allowing discriminatory hiring practices, illegal expropriations of land). The obligations to fulfill requires the State to take positive steps to ensure the realization of the right in question, which may include ….. ‘legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights’. In the later General Comments issued by the Committee on ESC rights, the obligation to fulfil is defined further as including an obligation to facilitate, to provide and to promote.

A careful reading of General Comment No.3 under the ICESCR reveals that a government is required to do at least three concrete things to implement its obligations progressively. First, it must take specific steps, and cannot do nothing. Second, the steps must be ‘expeditious’ and ‘effective’. Third, the steps must be ‘deliberate, concrete and targeted as clearly as possible……’ These requirements are supported by text of the Covenant, which specifies that States parties shall realize the rights ‘by all appropriate means’. Part of this requirement is that States Parties adopt national plans of action which set forth long – term plans and policies for implementing the right(s).

Limburg Principles and Massatricht Guidelines

According to the Limburg Principles on the Implementation of Economic, Social and Cultural Rights (1986, laws imposing limitations on the exercise of economic, social and cultural rights should not be arbitrary or discriminatory. Further, national security should not be used as a pretext for imposing arbitrary limitations and it should be invoked only when adequate safeguards and effective remedies are available against abuse.

An elaboration of the Limburg principles is provided by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997). The Maastricht Guidelines elaborate on the Limburg principles with respect to, inter alia, the nature and scope of violations of economic, social and cultural rights. Accordingly, economic, social and cultural rights impose three different types of obligations on the State: the obligations to respect, protect and fulfil rights. Failure to perform any one of these three obligations constitutes a violation of such rights. The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. For instance, if a State engages in arbitrary forced evictions, the right to housing is violated.

The obligation to protect requires States to prevent violations of such rights by third parties. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Further, the obligations to respect, protect and fulfil each contain elements of obligation of conduct and obligation of result. The obligation of conduct could involve the adoption and implementation of a plan of action to achieve a specific objective. The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard. Hence, a violation of economic, social and cultural rights occurs when a State pursues a policy or practice, either by commission or omission, which deliberately contravene the obligations of the Covenant. It is clear that states have a duty to achieve the ‘ends’ of respecting, protecting and fulfilling ESC rights with a specific focus on minimum core obligations.

Limitations

A Constitution that declares fundamental rights and freedoms lays down permissible restrictions in order to maintain a balance between individual rights and freedoms on the one hand and the interests of society on the other. While the rights and freedoms represent the claims of the individual the permissible restriction represent the claims of the society. The UDHR recognizes the need to impose limitations on fundamental rights for appropriate purposes. Article 29(2) declares:

“In the exercise of his rights and freedoms, every one shall be subject only to such limitations as are determined by law solely for the purpose of securing the due recognitions and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and general welfare in a democratic society”.

The ICCPR provides in Article 4 as follows:

“In times of public emergency which threaten the life of the nation and the existence of which is officially proclaimed, the State parties to the Covenant may take measures of derogating from their obligations under Covenant to the extent strictly required by the exigencies of the situations, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion, or social origin.”

These limitations or suspensions must also be reported to the United Nations. It is also noted that no derogation from articles 6 (right to life), 7 (freedom from torture), 8 (freedom from slavery and servitude), 11 (Freedom from imprisonment on the ground of inability to fulfill a contractual obligation), 15 (freedom from retroactive penal legislation), 16 (right to recognition as a person before law), and 18(Freedom from thought, conscience and religion) is however permitted in any circumstances whatsoever under ICCPR.

The ICESCR states that the rights in that document may be limited by law but only so far as is compatible with the nature of the rights and solely to promote the general welfare in a democratic society. Unlike the UDHR and ICESCR, the ICCPR contains no general provision applicable to all the Covenants’ rights authorizing restrictions on their exercise. However, several Articles in the Covenant provide that the rights being dealt with shall not be subject to any restrictions except those provided by law and those which are necessary to protect national security. State parties have an obligation under both Covenants to report periodically to international bodies on measures they have taken on progress they have made and on any difficulties they have encountered in living up to the Covenants.

Human Rights and the Common Good

fundamental Rights and the Common Good: We must recognize both the fact that fundamental individual freedom need to be modified in application having regard to the common good, and the fact that the rights of the individual recognized and declared by the people as being fundamental are, therefore, important and cannot be arbitrarily, interfered with by the State. Attempting to achieve a balance between the rights of the individual and the obligation of the State to the community, is not an easy matter. However, in the last analysis, individual rights must be weighted against the interests of the community as a whole. That is why every nation and group of nations recognizes the right to derogate from guarantees and assurance to individuals of fundamental rights where wider interests are in peril.

(The writer is a Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney- at-Law with Ph.D. in Law as well).