implement the Convention:
are binding on States [Parties] and do not, as such, have direct horizontal
effect as a matter of international law. The Covenant cannot be viewed as a
substitute for domestic criminal or civil law. However the positive obligations
on States Parties to ensure Covenant rights will only be fully discharged if
individuals are protected by the State, not just against violations of Covenant
rights by its agents, but also against acts committed by private persons or
entities that would impair the enjoyment of Covenant rights in so far as they
are amenable to application between private persons or entities. There may be
circumstances in which a failure to ensure Covenant rights as required by
article 2 would give rise to violations by States Parties of those rights, as a
result of States Parties’ permitting or failing to take appropriate measures or
to exercise due diligence to prevent, punish, investigate or redress the harm
caused by such acts by private persons or entities. States are reminded of the
interrelationship between the positive obligations imposed under article 2 and
the need to provide effective remedies in the event of breach under article 2,
paragraph 3. The Covenant itself envisages in some articles certain areas
where there are positive obligations on States Parties to address the activities
of private persons or entities. For example, the privacy-related guarantees of
article 17 must be protected by law. It is also implicit in article 7 that States
Parties have to take positive measures to ensure that private persons or
entities do not inflict torture or cruel, inhuman or degrading treatment or
punishment on others within their power. In fields affecting basic aspects of
ordinary life such as work or housing, individuals are to be protected from
discrimination within the meaning of article 26. 167
iv)
Reproductive Rights
Karen Noelia Llantoy Huamán v. Peru 168 concerns a minor who was carrying a foetus with a
fatal abnormality. She was denied an abortion despite Peruvian law allowing pregnancy
termination for health reasons. The young woman was forced to carry the foetus to term
and to feed the baby until its inevitable death several days later. The HRC found a
violation of Article 17 (arbitrary interference with privacy) and Article 7 (prohibition of
torture), reasoning that the author suffered mental distress due to the refusal of the
medical authorities to carry out a therapeutic abortion. 169 It noted the author’s particularly
vulnerable position as a female minor and the failure of the State to give her adequate
medical and psychological support.170 Peru was consequently found in breach of Articles 24
(right to special measures of protection for minors) and 2 (obligation to ensure and protect
rights) of the ICCPR.
5.2.4 Limitations and Opportunities
Despite the broad scope of Article 7 of the ICCPR, “there have been very few female
applicants who have brought proceedings alleging a breach of Article 7 as a result of
sexual or other violence outside the traditional construction of torture within State
custody”.171 There have been cases before the HRC though these have concerned men
167
On torture by non-state actors, see also General Comment No. 20 on Article 7: “[i]t is the duty of the State
party to afford everyone protection through legislative and other measures as may be necessary against the acts
prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity
or in a private capacity” (para. 2). In its General Comment No. 28, the Committee identified domestic violence
and other forms of violence against women as contrary to Article 7 of the ICCPR (para. 11).
168
Karen Noelia Llantoy Huamán v. Peru, HRC Comm. No. 1153/2003 (2005).
169
Ibid., ¶ 6.3-6.4.
170
Ibid., ¶ 6.5.
171
supra note 1 at p. 221.
48
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