Explore BrainMass

Explore BrainMass

    Legal and Ethical Issues

    This content was COPIED from BrainMass.com - View the original, and get the already-completed solution here!

    Mr. A, a national of State X which is a party to the International Covenant on Civil and Political Rights and its first Protocol, was arrested by the police in October 2005 in the context of terrorist bombings that took place in the capital of this state and have left many people killed or seriously wounded. Mr. A was beaten up, denied food and water for 2 days, before he was brought to a military base situated outside the country. He was kept there for 2 years without having the opportunity to establish contact to the outside world, not being allowed to write or read, including reading the holy book of his religion that he had carried with him. Suddenly he became released without any explanation and compensation. All the proceedings he has instituted against State X were to no avail.
    Mr. A doesn't accept this result. He wishes to complain about the violations of his human rights, particularly his human dignity, to the Human Rights Committee and receive adequate compensation.
    Question 1: Given the facts presented above, please discuss whether and which Covenant rights have been violated and if Mr. A may claim compensation.

    State X denies any violation of its legal obligations. It argues that it had denounced the Covenant and the first Optional Protocol with effect of January 31, 2010, thus terminating the competence of the Human Rights Committee to examine its compliance with the Covenant. Additionally, State X maintains that it had never incorporated the Covenant rights in its domestic legal order, thus having never accepted the applicability of the ICCPR rights in a specific case.
    Question 2: What impact does these arguments have on the admissibility and/or the merits of Mr. A's communication?

    State X argues that it had made use of the possibility offered by article 4 ICCPR. Because of the sequence of most disastrous terrorist acts during the year 2005 it had officially proclaimed a state of public emergency in June 2005 for three years derogating from all rights covered by the Covenant and had duly informed the other States parties through the intermediary of the United Nations Secretary-General.
    Question 3: Discuss whether this argument may change the result you have found in responding to question 1.

    State Y is pondering over an accession to the Covenant, because its willing to accept its substantive provisions. However, State Y dislikes to become monitored by the Human Rights Committee whose interpretation of the rights guaranteed by the Covenant is regarded to be too progressive. Y therefore asks for advice whether it would be possible to exclude the Committee's competences provided for by the covenant by formulating a reservation to this effect upon accession.
    Question 4: Please discuss the issue.

    Question 5: What would you propose in order to make the monitoring procedure ( ART. 40 ICCPR) more effective?

    The response addresses the queries posted in 5720 words with references.

    © BrainMass Inc. brainmass.com October 2, 2020, 12:52 am ad1c9bdddf

    Solution Preview

    The response addresses the queries posted in 5720 words with references.

    //The paper deals with a case regarding the exercise of the Covenant Rights, as prescribed by the Human Rights Committee. Here, the details have been provided with respect to a case, where a person appeals to exercise the Rights when he finds himself in the state of dissatisfaction about the whole system and the procedure being followed with him. The first part of the paper aims at explaining the Covenant Rights, which can be followed in the concerned case. Some introduction to the involved terminology has also been presented.//


    Human Rights is the privilege given to the citizens of a state or country, so that they enjoy things equally, there is no discrimination between people of the state or country, and they do not get exploited or tortured by the legal bodies of state or country on any ground. These rights enable a person to know about his rights and the reason behind providing them. The Human Rights protect an individual from facing any consequences for which he is actually not responsible. These rights are specially meant for saving the fundamental rights of the human beings (Auden, 1997).

    Covenant Rights: Covenant is a type of commitment that is made by one party to the other, or say, it is a deal that is made between two parties, where one promises to return back the favor in the form of work done or any help, whenever the other needs it. Covenant Rights are those agreements, which are promised by the government to be provided it to its people. There are five types of rights, which are given to common people as their rights, and help them in problematic situations. These rights include political, social, cultural, economic and civil rights (Human Rights Committee, 2007).

    Human Rights Committee and Covenant Rights

    The Human Rights Committee is that governing body, which is made up of the collection of few independent and intellectual experts, who keep a check and monitor the fact, whether the rights made and provided to the civilians or citizens are being implemented by the state governments or not. The Covenant Rights focus mainly on the protection of rights of people, so that they enjoy the equal status and position in the society, as any other person. The process of monitoring involves the collection of reports about how the rules and rights are being implemented from all the state parties and then, the committee reviews and examines the report and gives its decisions in the form of concern and recommendations (Human Rights Committee, 2007).

    As per the case taken into consideration, the Covenant law or rights that have been violated are the civil and political covenant rights. The whole Covenant is divided into six parts, which includes the rights to be given to people, as well as the rules and regulations that should be followed by the state governments. The parts of the Covenant are as follows:

    Part 1 gives the right to have self-determination.
    Part 2 includes the general obligations formulated, which should be followed by the state parties, which includes implementation of the Covenant with the help of legislative and other measures. It also includes the obligation of providing the effective remedial aid to the victims, treating all people of different genders as equal, and it puts a restriction to the possibility of derogation.
    Part 3 depicts the civil and political rights, which points out the following rights that can be enjoyed by the individual:
    1. The right to life and prohibition of exercise of any kind of torture.

    2. The right to liberty and security of the individual.

    3. The right to freedom of movement and fair hearing.

    4. Right to privacy, freedom of religion and freedom of expression.

    5. Right to freedom of peaceful assembly.

    6. Right to lead a healthy family life.

    7. Rights of children to have special protection.

    8. Right to participate in the conduct of public affairs and right to fight for equal treatment.

    9. Special rights to be enjoyed by people belonging to the ethnic, religious and linguistic minorities.

    Part 4 presents the procedure for election of the members of the Human Rights Committee, State Reporting and mechanism for the inter-state complaint's registration and dealing them.
    Part 5 states that anything mentioned in the Covenant should not be misunderstood as the privilege to impair the inherent rights of all people to enjoy and to utilize their natural resources in a full fledged manner.
    The last part states that the Covenant should extend to all the parts of the federal states and set the amendment procedure. The Covenant is not subject to any kind of criticism (International Covenant on Civil and Political Rights, 1996).
    //The next part deals with the explanation of the first question of the case, that whether and which Covenant Rights have been violated in the concerned case, and the possibility for Mr. A to claim any compensation or not//

    Answer 1

    Coming back to the case, the answer to the question which asks to discuss whether and which of the Covenant Rights have been violated, is that the civil and political rights have been violated, which are mentioned in the Part 2 & 3 of the Covenant. The proceedings faced by Mr. A gives an idea that how he was arrested, beaten up, denied food and water, etc., and then, out of nowhere, he is released without giving any explanation or compensation for the things that he faced. He decides to complain against the whole system and procedure, as he felt that his rights were violated.

    The sixth part of the Covenant says that under no condition, the Covenant can be criticized or violated, and it should extend to all the federal states. The justification gives all the reasons that violate this part itself. Hence, it can be said that rights of Mr. A were violated. Hence, this gives Mr. A every right to claim for the compensation, as he is the one whose rights have been violated. The articles 6, 7 and 8 of Part 3 of the Covenant have provided guidance that has been taken into consideration, so as to come to concluding answer. These articles are:

    Article 6: The article consists of following sub-points:

    ◦ Every individual has the inherent right to life and this right shall be protected by law. In the states where the death penalty has not been abolished, sentence of death can be given for only very severe crimes, that too with respect to the law, that was in force at the time when the crime was committed.

    ◦ No state shall have the authority to derogate any law or obligation that is assumed under the provisions of Convention on the Prevention and Punishment of the crime of Genocide.

    ◦ Any person sentenced to death shall have the right to seek pardon or commutation of the sentence, which will be granted in all the classes.

    ◦ Sentence of death shall not be imposed on the individuals below 18 years of age and pregnant women.

    ◦ Nothing in the article shall be delayed or infuriated to abolish the punishment given for the crime, by the State party.

    Article 7: Nobody shall be subject to torture or inhuman treatment or punishment, and no one shall be subjected to medical or scientific experiments, without his/her free consent.

    Article 8: No individual shall be subject to slavery or held in servitude. Nobody can force the other person to perform the forced or compulsory labor (International Covenant on Civil and Political Rights, 2007).

    //The next part is concerned with the presentation of merits and/or admissibility that Mr. A's communication will have, due to the arguments given by the state. The end part of the section also includes few articles of the Covenant //

    Answer 2

    As per the argument given by the state, it denies any kind of violation of the legal obligations. It also aids the argument with the fact that the State has denounced the Covenant, and the first Optional Protocol, with effect from January 31, 2010. By doing so, it terminated the Human Rights Committee's right to examine the compliance of the State with the Covenant. Not only this, the state also says that it had never incorporated the Covenant rights in the domestic legal order, and hence, never accepted any kind of application of the ICCPR in any case. The benefit that Mr. A will enjoy will include the fact that the obligations and provisions are all in favor of him. This will not only make the State party land in problems of facing serious consequences, but they will also have to pay the compensatory loss faced by A.

    Every argument that the state is giving is not sufficient enough to ...

    Solution Summary

    The response addresses the queries posted in 5720 words with references.