San Beda University, College of Law

2nd Sem SY 2020-21

Subject: Human Rights
Prof: Comm. Wilhelm D. Soriano
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Topic: The First Optional Protocol to the International Covenant on Civil and
Political Rights

The First Optional Protocol to the International Covenant on Civil and Political
Rights was adopted on December 16, 1966 by the General Assembly and entered
into force on March 23, 1976 (required ten (10) signatories to come into force). As
of May 2020, it had 35 signatories and 116 State Parties

The First Optional Protocol to the International Covenant on Civil and Political
Rights is an international treaty establishing an individual or group of individual
complaint procedures in the international level for the violations of civil and
political rights

State signatories agree to recognize the competence of the UN Human Rights

Committee to receive and consider communications from individuals who claim
their rights under the covenant on civil and political rights have been violated, when
all domestic remedies have been exhausted or have taken so long

Why is there need for an Optional Protocol?

First, let us understand the meaning of optional protocol, optional means a choice
and protocol means a set of rules. Therefore, optional protocol simply means that
victims of violations of civil and political rights have an option to seek redress from
violations of their civil and political rights in the international level if the domestic
judicial remedy is not effective

Recall that under the ICCPR (adopted on December 16, 1966 and entered into force
on March 23, 1976, with 74 State signatories) particularly Article 2, all State
Parties have agreed to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to
adopt such laws or other measures as may be necessary to give effect to the
rights recognized in the present Covenant

Also, under Article 3, each State Party to the present Covenant undertakes:

a) To ensure that any person whose rights or freedoms as herein recognized

are violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity

b) To ensure that any person claiming such a remedy shall have his rights
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy

c) To ensure that the competent authorities shall enforce such remedies

when granted
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Please bear in mind that long before the adoption and entry into force of both the
ICCPR and the Optional Protocol to the ICCPR, the Philippine government had
already established its own domestic remedial mechanism in case of violations of
the civil and political rights of any person within the territorial jurisdiction of the
Philippines

Take note, also, that the civil and political rights of everyone within the territory of
the country has already been recognized and protected by no less than the
Philippine Constitution, as well as, by the enactments of special laws by congress,
among others are, the law against torture, violence against women and children, and
rights on the indigenous cultural communities

The domestic remedial mechanism is composed of what you called as –“The

Five Pillars of the Criminal Justice System”

1. The Community, a good community produces a good criminal justice system,

a rotten community produce a rotten law enforcers, investigators,
prosecutors, judiciary, and correction officials

2. The Law Enforcement/Investigators, the PNP and the NBI

3. The Prosecution, they determine probable cause for filling

complaint/information against the alleged perpetrator

4. The Judiciary, they conduct trial and determine whether the accused is guilty
beyond reasonable doubt or innocent

5. The Corrections or Penology system, the National Bureau of Corrections

The criminal justice system works likes a chain of links. Any weakness in any of
these links breaks the chain, resulting to a breakdown of the system. And in the
event that the domestic remedial mechanism becomes ineffective, the victim/s has
the option to elevate their complaints before the UN Human Rights Committee

Article 28 of ICCPR provides -

1. There shall be established a Human Rights Committee. It shall consist of 18

members and shall carry out the functions hereinafter provided

2. The Committee shall be composed of nationals of the State Parties to the

present Covenant who shall be persons of high moral character and
recognized competence in the field of human rights, consideration being
given to the usefulness of the participation of some persons having legal
experience

3. The members of the Committee shall be elected and shall serve in their
personal capacity

Article 38 – Every member of the Committee shall, before taking up his duties, make
a solemn declaration in open committee that he will perform his functions
impartially and conscientiously
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The State Parties to the present Protocol,

Considering that in order further to achieve the purposes of the International

Covenant on Civil and Political Rights and the implementation of its provisions it
would be appropriate to enable the Human Rights Committee set up in Part IV of the
Covenant, to receive and consider, as provided in the present Protocol,
communications from individuals claiming to be victims of violations of any of the
rights set forth in the Covenant

Have agreed as follows:

Article 1

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 violations of any of the rights set forth in the Covenant

No communication shall be received by the Committee if it concerns a State Party to

the Covenant which is not a party to the present Protocol

Article 2

Subject to the provisions of article 1, individuals who claim that any of their rights
enumerated in the Covenant have been violated and who have exhausted all
available domestic remedies may submit a written communication to the Committee
for consideration

Who can bring a complaint?

Any person who claim, that his/her civil or political rights have been violated may
file a complaint/communication before the Human Rights Committee. Complaints
may also be brought on behalf the alleged victim/s with his/her written consent.
However, if the alleged victim is a subject of an “enforced disappearance” or without
access to the outside world, consent may be dispensed

Against whom?

The complaint is against a State Party that has signed and ratified the ICCPR and the
Optional Protocol to the ICCPR, meaning the State Party has recognized the civil and
political rights of the complainant, as well as, recognized the competence of the
Human Rights Committee to received and consider complaints/communications
from supposed victims of human rights violations

Article 3

The Committee shall consider inadmissible any communication under the present
Protocol, which is, anonymous, or which is considered to be abuse of the right of
submission of such communications or to be incompatible with the provisions of the
Covenant

The complaint/communication should be in writing, preferably typed, either in

English, Spanish, French, Russian, Arabic, or Chinese
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It is essential to set out all the facts on which the complaint is based. The narrative
must be as complete as possible and contain all the information relevant to the
complaint

It must specify the rights that have allegedly been violated and must state why
he/she considers that the facts described constitute a violation of his/her rights

Article 4

1. Subject to the provisions of article 3, the Committee shall bring any

communications submitted to it under the present Protocol to the attention
of the State Party to the present Protocol alleged to be violating any
provision of the Covenant

2. Within six (6) months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy, if
any, that may have been taken by the State

Article 5

1. The Committee shall consider communications received under the present

Protocol in the light of all written information made available to it by the
individual and by the State Party concerned

2. The Committee shall not consider any communication from an individual

unless it has ascertained that:

a) The same matter is not being examined under another procedure of

international investigation or settlement

b) The individual has exhausted all available domestic remedies. This shall
not be the rule where the application of the remedies is
unreasonably prolonged

3. The Committee shall hold closed meetings when examining communications

under the present Protocol

Two major stages in the examination of the communication, first – the

admissibility stage refers to the formal requirements of the complaint which
must be compliant or satisfactory; second – the merits stage refers to the
substance of the complaint

Finding the communications in order, the Committee shall then forward the
communications to the State Party concerned for comment/actions and
submit its comments/statements within six months from the date of receipt

When comments have been received from both parties, the case is ready for
resolution. If a State Party fails to respond despite receiving notices, the case
will be decided based on the available information submitted by the
complainant
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The Human Rights Committee, at any stage of the proceedings may request
the State Party concerned to take “interim measures” to prevent any
irreparable harm to the complainant or alleged victim of the violations. Such
interim measures are called to prevent actions that cannot later be undone,
such as the execution of a death convict and the deportation of a person to
another country where there is death penalty

4. The Committee shall forward its views to the State Party concerned and to
the individual

Article 6

The Committee shall include in its annual report under article 45 of the Covenant a
summary of its activities under the present Protocol

What happened once a committee has decided the case?

It should be noted at the outset that there is no appeal against the committee’s
decisions and that, as a rule, their decisions are final

If the committee finds that there is no violation, the case is closed. If the committee
decides that the facts before it disclose a violation of rights by the State Party, it will
require the State Party to take the necessary steps to give effects to the findings and
recommendations of the committee

Article 7 - The provisions of the present Protocol may be applicable to the people of
decolonized countries

Articles 8, 9, and 10 – procedures on signatures and ratifications

Article 11 – State Party may propose an amendment

Article 12 - Any State Party may denounce the present Protocol at any time by
written notification addressed to the Secretary General of the United Nations.
Denunciation shall take effect three months after the date of receipt of the
notification

Denunciation shall be without prejudice to the continued application of the

provisions of the Protocol to any communication submitted under article 2 before
the effective date of denunciation

Article 13 and 14 – duty of Secretary General

Second Optional Protocol to the International Covenant on Civil and Political

Rights (Adopted by the UN General Assembly on December 15, 1989 and entered
into force on July 11, 1991)

The Second Optional Protocol to the ICCPR is a side agreement to the International
Covenant on Civil and Political Rights, which commits all State Parties to the
abolition of the death penalty within their respective territorial jurisdictions
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The State Parties to the present Protocol,

Believing that abolition of the death penalty contributes to enhancement of human

dignity and progressive development of human rights

Recalling Article 3 of the UDHR, adopted on December 10, 1948, and Article 6 of the
ICCPR, adopted on December 16, 1966

Noting that Article 6 of the ICCPR refers to the abolition of the death penalty in
terms that strongly suggest that abolition is desirable

Convinced that all measures of abolition of the death penalty should be considered
as progress in the employment of the right to life

Desirous to undertake hereby an international commitment to abolish the death

penalty

Have agreed as follows:

Article 1: No one within the jurisdiction of a State Party to the present

Protocol shall be executed

Each State Party shall take all necessary measure to abolish the death
penalty within its jurisdiction

Article 2: No reservation is admissible to the present Protocol, except for a

reservation made at the time of ratification or accession that provides
for the application of the death penalty in time of war pursuant to a
conviction for a most serious crime of a military nature during
wartime

The State Party making such a reservation shall at all time of

ratification or accession communicate to the UN Secretary General the
relevant provisions of its national legislation applicable during
wartime

The State Party having made such a reservation shall notify the UN
Secretary General of any beginning or ending of a state of war
applicable to its territory

Article 3: State Party to submit report to the Committee on the measures that
they have adopted to give effect to the present Protocol

Article 4: Competence of the Human Rights Committee to receive and consider

communications from a State Party that another State Party is not
fulfilling its obligations

Article 5: Competence of the Human Rights Committee to receive and

consider communications from individuals under the First
Optional shall extend to the present Protocol

Article 6: Present Protocol shall apply to the ICCPR, and no derogation on the
provision of Article 1, par 1 (No one within the jurisdiction of a State
Party to the present Protocol shall be executed)
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Article 7: Open for signature and ratification

Article 8: Present Protocol shall enter into force 3 months after the date of the
deposit with the Secretary General

Article 9: Extend to all State Parties

Article 10: UN Secretary General shall inform all States

Article 11: UN Secretary General shall transmit certified copies to all States

Philippine compliance

Article III, Section 19(1) – Excessive fines shall not be imposed, nor cruel, degrading
or inhuman punishment inflicted. Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced to reclusion perpetua

R.A. No. 9346, (June 24, 2006), an Act prohibiting the imposition of death penalty in
the Philippines

Section 1 – The imposition of the penalty of death is hereby prohibited. Accordingly,

R.A. No. 8177, (March 20, 1996) aka An Act Designating Death by Lethal Injection
is hereby repealed and R.A. No. 7659, (December 12, 1993) aka An Act to impose
the Death Penalty on certain Heinous Crimes, and all other laws, executive order
and decrees, insofar as they impose the death penalty are hereby repealed or
amended accordingly

Section 2 – In lieu of the death penalty, the penalty or reclusion perpetua or life
imprisonment shall be imposed

Section 3 – death penalty reduced to reclusion perpetua but not eligible for parole