The Covenant on Civil and Political Rights, Research Paper Example

When did State A become a Party to the Covenant for Civil and Political Rights and the Optional Protocol?

The State, according to the article, became a party to the Covenant on Civil and Political Rights and of the First Optional Protocol on March 2, 2008, which is three months after instrument of ratification to the United Nations Secretary General.

What was the reason behind the exhaustion of domestic remedies and what is its legal basis?

One of the reasons behind the exhaustion of domestic remedies, is due to the fact that according to Article 35 Section1 concerning the admissibility criteria, the court may only deal with a matter after all the domestic remedies have been exhausted according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken (European Courts of Human Rights, 2006),

The case of Mr. X would not have reached the courts within 6 months after the final decision was taken, despite him having conformed to Article 35 Section 1, in seeking to exhaust all the remedies from the lower available courts. Additionally, based on the history of the timeline for the International Courts, it would normally take four years for cases like Mr. to be heard and then ruled on, a position that would further e3xacerbate his situation from a time perspective..

Another reason has to do with the fact that during the process of exhausting all domestic remedies, the question of whether the case can be classified as domestic or international can be ascertained. Should it be determined that it is the former it will be lodged in the courts, while if the latter becomes easily recognized, submission will be rejected and deferred by the court, according to Article 35 S.2 (b) of the Convention, according to the European Courts of Human Rights (2006).

The exhaustion rule according to the European Courts of Human Rights (2006), also gives due respect to the sovereignty of each country and affords its highest the courts opportunities to prevent or put right the alleged violations of the Conventions, due the fact that resident within article 13 are effective remedies for most legal cases presented.

Cases like Salmound v. France (GC) .No. 25803/90 ECHR 1999-VS.74 and Kudla v. Poland (GC) No. 302 10/96 2000-XL S 152 also serves as excellent precedent for the provision of remedy for possible violations of the convention (European Courts of Human Rights, 2006).

Did X exhaust domestic remedies?

According to the case presented in the article, all available courts dismissed Mr. X’s claim, with the last being handed down in August 2011, after which he failed to lodge his complaints to the Constitutional Court, owing to the length of time it would take to be heard. It can therefore be argued favorably that Mr. X had exhausted all the available domestic remedies when he unwisely tried several courts without giving himself enough time to approach the Constitutional Court.

State A argument that the communication by Mr. X to the Human Right Committee o October 17, 2011 was inadmissible, should be considered in a favorable light, due to the fact that the termination of the labor contract was done by a private employers which in effect made the state devoid of any associated responsibility, as required by the Covenant.

The facts surrounding the case is that the instrument of the Covenant on Civil and Political Rights and the First Option Protocol for State A was deposited on January 2, 2008, causing it to become a party on March 2, 2008,  while Mr. X was fired from his job in December, 2007. This was a full two months before State became a member, and according to the International Human Relations Law (2005), Part 1 Article 11, under jurisdiction Ratione Temporis, the court has the jurisdiction only with respect to crimes committed after entry into force of this statute, and if a state becomes party to this statute  after its entry into the force, the court may exercise its discretion only with regard to the crimes committed  after entry into force of this statute, unless the State has made a declaration under article 12  section 3 (International Human Rights Law, 2005).

State A on this basis was correct in advocating for the communication to be classified as inadmissible, since the firing took place before the state instrument of ratification or article of accession has been deposited, but lawyers for Mr. X could argue using section  3 of article 12 which stipulate that if the acceptance of a State which is not party to the statute is required under paragraph, that State, according to International Human Relations Law (2005), may by declaration lodge with the Registrar, accept jurisdiction with respect to the crime in question. The accepting State According to International Human Rights (2005) shall cooperate with the Court without delay or exception in accordance with Part 9.

The jury or panel of judges hearing the arguments may weigh both sides, and objectively rule that the case was still inadmissible, due to the fact that a private employer also done the termination and the State had no direct responsibility, as well as the fact that the Statewas not a party to the Covenant on Human and Political Rights at the time of the apparent crime.

Mr. X A alleged that his former employer had violated Article 18 and 26 of the CCPR, but based on his accusation only subsections 1 and two of the first Article were in support, while subsection 3 of the same article on examination, would totally nullify his assertions.

Subsection 1 of Article 18 states that everyone shall have the right to freedom of thought, conscience, and religion and this include the freedom to adopt a religion or belief of his choice, either individually or in community with others, and in public or private, to manifest his religionor belief in worship, practice and teaching (Office of United Nations High Commissioner for Human Rights, 2007).

In case of subsection 2 of Article 18, no one shall be subjected to coercion which would impair his freedom to have or to adopt a religion or belief of his choice (Office of the United Nations High Commissioner for Human Rights, 2007). The stipulations of the Article 18 of the Covenant certainly supported Mr. X, but because his employer used several methods to persuade him to wear the safety gear, and fired him when he failed to comply.

However, the critical aspect of the article which would cause his case to be rejected were subsection3, which implies that one’s freedom to manifest his or her religious beliefs may be subject only to limitations that are prescribed by law and necessary to protect the public safety, order, health or moral or the fundamental rights of others (Office of the United Nations High Commissioner for Human Rights, 2007).

Mr. X had insisted on wearing his Sikh headgear, rather than the safety helmet provided by his employer who was following both national and international safety regulations to ensure the safety and protection of the entire work crew and to avoid the imposition of penalties and litigations in case of accidents could cost millions of dollars depending on the case as well as the nature of the incident.

The employer of Mr. X showed good restraint base on the contents of the article, when he tried over a period of time to help him to change his behavior and comply to the safety laws, and was therefore justified in terminating the services of this uncooperative yet religious employee..

Article 26 of the CCPR, renders all persons equal before the law and entitled them without any discrimination, to equal protection of the same law, according to the Office of the United Nations High Commissioner for Human Rights (2007). The article specifically prohibits any form of discrimination and guarantees persons of different races, color, sex, language, religion, political affiliations, nationality, social origin, birth or other status equal  and effective protection against discrimination ( Office of the United Nations High Commissioner for Human Rights (2007).

Mr. X must have felt that because of his different religion he was being targeted for acts of discrimination after his services were terminated. However, subsection 3 of Article 18 would reduce the validity of his argument that his rights were being violated, in that the safety laws of the land were the area where provisions were made to take actions of this nature without being liable before local and international courts.

It could therefore be concluded that Mr. X rights were not being violated, but he in resisting the safety laws of his employer, was constantly making the same employer liable for penalties and fines for violating the national laws of the country, as well as jeopardizing the lives, morale and well being of other employees in community; and was justifiably fired.

Derogation from an obligation under the Covenant for Civil and Political Rights means under Article 4 of, states parties are permitted to break away from the treaty provisions under certain conditions, according to Hunstad (2009). This is possible only in times of public emergency; where the lives of citizens and nations are being threatened, and the existence of such situation is officially proclaimed, according to Hunstad (2009).

State  Parties to the Covenant according to Hunstad (2009),  may take measures that are different from what they are obligated to implement, due to the state of emergencies, provided such measures are not inconsistent with other obligations under international law and are not discriminatory on the grounds of race, color, sex, language, social origin or religion.

However the burden of proof rest with the state as mandated by the case of Weinberger v. Uruguay 28 HRC 1978, in which the judges ruled that a state that derogate from the Covenant of Civil and Political Rights (CCPR), are only allowed so in strictly defined circumstances and the government has to make submissions to justify the act (Hunstad, 2009).

State Parties to the Covenant may abrogate is responsibility to report under Article 40 of the Covenant for Civil and Political Rights , but not from its recognition of the competence of the Human Rights Committee (HRC), according to article 1 of the Optional Protocol. This is because there are provisions in Subsection 2 of Article 40 which allows for States experiencing factors and difficulties that prevents timely implementation of the covenant, to report their these issues, according tothe Office of the United Nations High Commissioner for Human Rights (2007).

However, in the case of Article 1 of the Optional Protocol, once a State is party to the present Protocol, it must recognize the competence of the committee to receive and consider communications, subject to its jurisdiction, who have presented claims to have been victims of violations by that State Party of any of the rights set forth in the Covenant, according to the United Nations Office for Human Rights (2007).

In cases where the state is not a party to the Covenant, it is under no obligation or commitment to recognize the competence of the committee to consider and receive communications, as well report its circumstances.

Reference

European Courts of Human Rights, (2006). Key Case-Law Issues: Exhaustion of Domestic Remedieswww.echr.coe.int/NR/donlyres/E3FCOC7E-BD11-49 , 10/24/11

Hunstad, R., (2009). Human Rights and Counter-Terrorism: Striking a Balancewww.humanrights.unio.no/om/ansette/vitenskapelig/rtmiller.xml , 10/24/.11

International Humanitarian Law, (2005).Part 2 Jurisdiction, Admissibility and Applicable Law International Committee of Red Cross (2005) www.icrc.org/ihl.nsf/WebART/585-11?Opendocument , 10/24/11

Office of the United Nations High Commissioner for Human Rights (2007). International Covenants on Civil and Political Right swww.2ohchr.org/English/law/ccpr.htm , 10/.24/11