ABSTRACT
The international community was committed to establishing a comprehensive international treaty concerned with the protection of fundamental human rights. Through the ECOSOC, the UN General Assembly requested the Human Rights Commission to draft such document. 1 However, it was impossible to make a single document for various political reasons; therefore, it was decided to split it into two: the first concerned with civil and political rights and the second with economic, social and cultural rights. 2 The General Assembly adopted the ICCPR as a comprehensive binding international treaty with regard to political and civil rights in December 1966. 3 The Covenant covered a wide range of rights, such as the right to self-determination (Article 1), the right to life (Article 6), freedom from slavery and the slave trade (Article 8), the right to a fair
focus of this book – political rights (Article 25). It is indeed one of the most significant international documents with regard to the protection of fundamental human rights. 4
Having observed the position of the right to democracy in international customary law – in its traditional and modern understandings – in the foregoing chapter, where no international customary norm was identified in this respect, this chapter will extend the doctrinal assessment to include the evaluation of the position of the notion in international conventions, which is another primary source of international law as provided in Article 38 of the Statute of the ICJ. This chapter is focused on the ICCPR, given that it is an important international treaty that covered the right to political participation and the second significant international instrument that limited the definition of the right to democracy in international law to procedural terms. This chapter will therefore begin by presenting a general overview of the Covenant and its drafting history. It will focus on the differences between the ICCPR and the UDHR in terms of its scope, content and the method by which each instrument was adopted. It will then discuss with critique the derogations provided in the Covenant and how they affect the right to political participation. This will be followed by a detailed assessment on the Human Rights Committee (HRC) and its role as the monitoring body of the ICCPR. The focus will be on its general comments function, and its significance to the interpretation of the provisions of the Covenant, especially Article 25. A detailed critical assessment will follow on the right to free and fair elections as provided in the text of the Covenant, the relevant general comment and the HRC’s jurisprudence, in the context of its consideration of individual communications and State reports.
